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Ill 


COLONIAL  ORIGINS 


NEW  ENGLAND  SENATES 


JOHNS  HOPKINS  UNIVERSITY  STDDIES 

IN 

Historical  and  Political  Science 

HERBERT  B.  ADAMS,  Editor 


History  Is  past  Politics  and  Politics  are  present  History — lyeeman 


FOURTEENTH  SERIES 
III 

COLONIAL  ORIGINS 


NEW  ENGLAND  SENATES 


By  F.  L.  RILEY,  A.  M. 

Fellow  in  History,  J.  H.  U, 


baltimore 
The  Johns  Hopkins  Press 

PUBLISHED    MONTHLY 

MARCH,  1896 


COPTEIGHT,  1896,  BY  THE  JOHNS  HOPKINS  PeESS. 


JOHN  HUBPH7  A  00.,  PEDJTEES, 
BALTIUOEE, 


CONTENTS. 


PAGE. 

Intboductiok 7 

Chapter  I. — Massachusetts. 

Section  I. — Governmental  Beginnings 9 

Section  II. — The  Executive  Function 11 

Section  III. — The  Judicial  Function 16 

Section  IV. — The  Legislative  Function 18 

Section  V.— The  Proposed  Constitution  of  1778 23 

Section  VI.— The  Constitution  of  1780 25 

Chapteb  II. — Connecticut. 

Section  I. — Governmental  Beginnings 28 

Section  II. — The  Executive  Function 31 

Section  III. — The  Judicial  Function 33 

Section  IV. — The  Legislative  Function 36 

Section  V.— The  Constitution  of  1818 38 

Chapter  III. — New  Hampshire. 

Section  I. — Governmental  Beginnings 40 

Section  II. — The  Executive  Function 41 

Section  III. — The  Judicial  Function 43 

Section  IV. — The  Legislative  Function 46 

Section  V.— The  Constitution  of  1776 48 

Section  VI.— The  Proposed  Constitution  of  1779 51 

Section  VII.— The  Proposed  Constitution  of  1781 51 

Section  VIII.— The  Constitution  of  1783-4 52 

Chapter  IV. — Rhode  Island. 

Section  I. — Governmental  Beginnings 64 

Section  II. — The  Executive  Function 59 

Section  III. — The  Judicial  Function 60 

Section  IV. — The  Legislative  Function 64 

Section  V.— The  Constitution  of  1842 66 

5 


6  Contents. 

Chaptek  V. — Conclusions.  page. 

Section  I. — Origin  of  the  New  England  Senates 69 

Section  II. — Forces  Which  Gave  Direction  to  their  Development. 

1.  Limitation  of  the  Number  of  Counsellors 72 

2.  Extent  of  Authority  and  Growth  of  the  Colonies 72 

3.  Illogical  Principle  upon  which  Power  was  Distributed 73 

4.  Introduction  of  the  Idea  of  a  Complete  Sepaartion  of  the 

Functions  of  Government 74 

5.  Inter-Colonial  Influences 74 

6.  English  Charters  and  Precedents 74 

Season  III. — Inherited  Characteristics  of  the  Senates. 

1.  Size 76 

2.  Personnel 76 

3.  Basis  of  Selection 76 

4.  Term  of  Office 76 


INTRODUCTION. 


The  American  Senates,  like  all  other  great  institutions,  are 
not  the  products  of  invention  but  of  growth  ;  a  growth,  too, 
which  required  more  than  a  century  to  mature.  They  appear 
in  our  early  State  Constitutions  as  the  results  of  a  series  of 
evolutions  which  are  synchronous  with  our  colonial  history. 
This  research  is  designed  to  trace  ultimately^  the  successive 
steps  of  this  development  from  its  inception  in  colonial  insti- 
tutions to  its  final  results  as  embodied  in  our  State  and  Federal 
Constitutions.  It  is  undertaken  with  the  desire  of  determin- 
ing, as  far  as  practicable,  the  different  forces  which  have  given 
direction  to  this  growth  and  the  relative  effect  of  native  and 
foreign  influences  in  the  formation  of  the  finished  product. 
Since  the  greater  part  of  this  study  is  confined  to  a  period 
antedating  the  separation  of  governmental  functions,  it  neces- 
sitates a  more  or  less  comprehensive  treatment  of  all  the 
departments  of  colonial  government.  The  Colonial  Councils, 
from  which  the  State  Senates  evolved,  originally  exercised  a 
power  which  was  three-fold, — executive,  judicial  and  legisla- 
tive. In  the  course  of  time,  however,  they  lost  their  executive 
and  judicial  authority,  as  is  shown  in  the  following  pages,  and 
were  thus  merged  into  State  Senates  in  the  present  sense  of 
the  word. 


^  The  present  study,  however,  is  confined  to  the  New  England  colonies,  a 
continuation  of  the  work  being  reserved  for  a  future  publication. 

7 


COLONIAL  ORIGINS  OF  NEW  ENGLAND 
SENATES. 


CHAPTER   I. 

Massachusetts. 

Section  I. —  Governmental  Beginnings. 

Historians  and  jurists  of  rare  ability  have  subjected  the  first 
charter  of  the  Massachusetts  Bay  Colony  to  the  most  searching 
analyses  in  order  to  determine  the  nature  and  extent  of  the 
power  which  it  conferred  upon  the  patentees.  The  conclusions 
which  have  been  reached  on  this  point  are  by  no  means  har- 
monious. Some  maintain  that  the  charter  conferred  no  powers 
apart  from  those  exercised  by  ordinary  trading  corporations, 
and  that  it  was  therefore  totally  inadequate  for  the  establish- 
ment of  a  commonwealth  in  a  foreign  land ;  ^  while  others,  no 


^  Lodge's  Short  History  of  English  Colonies  in  America,  41 2 ;  Oliver's  Puritan 
Commonwealth,  52,  76;  Massachuselis  Historical  Soc.  Proceedings,  1869, 166-188. 
An  excellent  account  of  the  limitations  of  this  instrument  is  also  given  in 
Brooks  Adams'  Emancipation  of  Mass.,  Ch.  I.  "  Some  of  the  best  politicians 
and  lawyers,  after  the  Revolution,  Somers,  Holt,  Treby  and  Ward  noted  the 
following  defects  in  this  charter :  That  being  originally  granted  to  a  great 
company  resident  in  England,  it  was  wholly  inapplicable  to  the  circum- 
stances of  a  distant  colony,  because  it  gave  the  body  politic  no  more 
jurisdiction  than  every  other  corporation  within  the  Kingdom ;  that  no 
authority  was  conferred  to  call  special  assemblies,  wherein  should  appear 
the  delegates  of  the  people,  because  representation  was  expressly  excluded 

9 


10  Colonial  Origins  of  New  England  Senates.         [102 

less  eminent,  contend  that  the  colonists  in  erecting  a  civil 
government  upon  this  basis  neither  violated  the  laws  of 
England  nor  transgressed  the  limits  of  their  prerogatives  as 
defined  in  the  charter.^  However  this  may  be,  the  transfer 
of  the  charter  to  the  colony  in  1630  afifected  the  political  status 
of  the  Assistants,  or  Counsellors  very  materially,  since  in  the 
inevitable  confusion  arising  out  of  this  shifting  of  the  seat  of 
government,  they  were  able  to  exchange  the  vaguely  defined 
powers  of  the  charter  for  a  more  substantial  authority  based 
upon  the  political  necessities  of  the  colony.  Hence  their  power 
developed  with  astonishing  rapidity.''    From  "  directors  of  a 


by  the  clause  requiring  the  presence  of  the  freemen  in  the  General  Courts ; 
that  no  pernaission  was  given  to  raise  money  either  on  the  colonists  or  on 
strangers  trading  thither,  because  the  King  could  not  give  an  authority 
which  he  did  not  himself  possess ;  that  it  did  not  enable  the  legislative 
body  to  erect  various  judicatories,  either  of  admiralty,  or  probate  of  wills, 
or  of  chancery,  because  that  required  such  a  special  grant  as  did  not  here 
exist."  (Neal's  History  of  New  England,  ed.  1741,  II,  105-6;  Chalmer's 
Political  Annals,  I,  141-142). 

*  Prof.  Joel  Parker,  the  successor  of  Judge  Story  in  the  Cambridge  Law 
School  maintains  the  following  theses  which  he  supports  by  a  series  of 
cogent  arguments:  (1)  That  "the  charter  was  not  intended  to  be  an  act 
for  the  incorporation  of  a  trading  or  merchants'  company  merely.  But  it 
was  a  grant  which  contemplated  the  settlement  of  a  colony,  with  power  in 
the  corporated  company  to  govern  that  colony  "  ;  (2)  "  The  charter  author- 
ized the  establishment  of  the  government  of  the  colony  within  the  limits  of 
the  territory  to  be  governed  as  was  done  by  vote  to  transfer  the  charter  and 
government";  (3)  "The  charter  gave  ample  power  of  legislation  and  of 
government  for  the  plantation  or  colony,  including  power  to  legislate  on 
religious  subjects  in  the  manner  in  which  the  grantees  and  their  associates 
claimed  and  exercised  the  legislative  power"  ;  (4)  "  The  charter  authorized 
the  creation  and  erection  of  courts  of  judicature  to  hear  and  determine 
causes  and  to  render  final  judgments  and  cause  execution  to  be  done  without 
any  appeal  to  the  courts  of  England."  {Mass.  and  Its  Early  History,  Lowell 
Institute  Lectures,  1869,  357-439).  For  further  arguments  pro  and  con 
on  this  subject  see  Ellis'  Puritan  Age  in  Mass.,  Ch.  VII;  Adams'  Emanei- 
paiion  of  Mass.,  Ch.  I. 

•  Within  a  few  months  three  important  acts  were  passed  which  gave  the 
Assistants  powers  that  transcended  the  limits  defined  by  the  charter.  1.  At 
the  first  General  Court  held  at  Boston  in  October,  1630,  the  freemen, 


103]  Massachusetts.  11 

company,"  with  a  limited  term  of  office  as  contemplated  by 
the  charter/  they  soon  rose  to  the  dignity  of  magistrates  ^  with 
practically  a  life-tenure  of  office.  Another  short  step  made 
them  virtual  "rulers  of  a  commonwealth"  with  all  the  depart- 
ments of  government  under  their  control.^ 

Section  II. — The  Executive  Function. 

In  the  exercise  of  executive  power,  however,  they  acted 
more  in  accordance  with  the  provisions  of  the  charter  than 

through  the  influence  of  the  newly  arrived  Governor  and  Assistants  (Hutch- 
inson's Hist,  of  3/ass.,  I,  30),  who  had  been  chosen  in  England  {lb.,  20), 
delegated  to  the  Assistants  the  privilege  of  choosing  from  among  themselves 
"  a  Goun'^  &  Deputy  Goun'',  whoe  w'*"  the  Assistants  should  haue  the  power 
of  makeing  lawes  &  chuseing  officers  to  execute  the  same;"  and  retained 
for  themselves  only  the  power  of  choosing  Assistants  "  when  they  are  to 
be  chosen."  {Mass.  Col,  Rec.,  I,  79.)  Of  course  the  practical  result  of  this 
last  clause  was  a  life-tenure  for  the  Assistants.  (Hutchinson,  1, 30 ;  Palfrey's 
Compendious  Hist,  of  New  Eng.,  T,  123 ;  Winthrop's  Hist,  of  New  Eng.,  I,  85 ; 
Hubbard's  Hist,  of  New  Eng.,  147).  2.  Six  months  later  it  was  voted  that 
these  extraordinary  powers  which  had  been  granted  the  Assistants  might 
be  exercised  by  five  or  even  a  less  number  {Mom.  Col.  Rec,  I,  84),  though 
the  charter  required  at  least  six  Assistants  and  either  the  Governor  or 
Deputy  Governor  to  constitute  a  quorum  {lb.,  11).  3.  Two  months  later 
(May  18,  1631),  it  was  enacted  that  for  the  future  "it  shalbe  lawfull  for 
the  Comons  to  ppounde  any  pson  or  psons  whome  they  shall  desire  to  be 
chosen  Assistants,  &  if  it  be  doubtfull  whith"^  it  be  the  greaf  pte  of  the 
comons  or  not,  it  shalbe  putt  to  the  poll.  The  like  course  to  be  holden 
when  they,  the  said  comons,  shall  see  cause  for  any  defect  or  misbehav'  to 
remoue  any  one  or  more  of  y^  Assist*"."  {Mass.  Col.  Rec.,  I,  87.)  The 
obscurely-worded  sentence  which  seems  to  have  been  appended  as  "  a  rider" 
at  the  end  of  an  act  that  would  have  been  otherwise  very  liberal,  created  a 
precedent  for  a  permanent  tenure  of  the  magistracy,  "  since  it  required  the 
invidious  and  difficult  process  of  a  vote  for  the  confirmation  or  removal  of 
Assistants  already  in  office"  (Palfrey,  I,  123;  Winthrop,  I,  85).  Hence 
"  the  dignities,  the  emoluments  and  for  a  considerable  time,  the  powers  of 
the  government  were  monopolized  by  ten  or  twelve  persons."  {PuriUin 
Com.,  55 ;   Hutchinson,  I,  293,  note). 

^Mass.Col.Rec.,l,\0,\'2.. 

*  Grahame's  Col.  Hist,  of  U.  S.,  I,  162 ;   Puritan  Com.,  55,  56. 

^  See  Prof.  G.  H.  Haynes'  Representation  and  Suffrage  in  Alass.,  1620-1691, 
J.  H.  U.  Studies,  Twelfth  Series,  VIII-IX,  Ch.  2. 


12  Colonial  Ch'igins  of  New  England  Senates.         [104 

when  assuming  the  other  functions  of  government.  It  is 
probably  due  to  this  cause  that  they  were  enabled  to  keep 
strictly  intact,  throughout  the  colonial  period,  this  alone  of  all 
their  original  powers. 

The  first  charter  vested  the  executive  function  in  the  Gov- 
ernor, Deputy  Governor  and  eighteen  ^  Assistants  or  Counsel- 
lors.^ Their  general  duties  pertained  to  the  transactions  of 
"matters  in  the  absence  of  the  General  Court." ^  Further 
details  as  to  time  and  place  of  meeting,  as  well  as  the  specific 
nature  and  scope  of  their  duties,  were  to  be  determined  as  the 
exigencies  of  the  colony  might  demand.  Randolph,  writing 
about  1676,  says  that  the  Council  met  in  its  executive  capacity 
twice  every  week,  and  as  often  besides  as  it  was  convened  by 
the  Governor.* 


^  This  number  was  not  chosen,  however,  at  any  one  time  in  the  first  fifty 
years  after  the  transfer  of  the  charter  to  the  colony  in  1630.  ( Palfrey,  II, 
233).  During  the  earlier  years  from  six  to  nine  were  generally  chosen, 
vacancies  being  left  for  men  of  note  who  might  come  over.  (Palfrey,  I, 
149;  Hutchinson,  1,44-5).  In  1658  the  number  was  limited  by  law  to 
fourteen.  {Mass.  Col.  Eec.,  IV,  1  pt.  1,  347).  This  law  was  repealed  in  1641, 
yet  the  practice  remained  the  same.  {lb.,  347 ;  pt.  2,  32 ;  468,  Palfrey, 
II,  28).  On  the  next  year  Charles  II  demanded  that  not  more  than 
eighteen  nor  less  than  ten  Assistants  be  chosen  annually.  {Mass.  Col, 
Bee.,  IV,  pt.  2,  32;  Perry's  Hist.  Papers  of  the  Amer.  Col.  Church,  35).  A 
special  election  was  held  in  October  16,  1678,  to  bring  the  number  up  to 
eighteen  in  compliance  with  a  demand  of  the  home  government.  {Mass. 
Col.  Bee.,  V,  195).  July  24,  1679,  the  King  demanded  "  that  the  ancient 
number  of  Assistants  be  henceforth  observed  as  by  charter."  (Hutchinson, 
I,  293;  Chalmers,  I,  451).  This  was  observed  until  1686  {Mass.  Col.  Bee., 
V,  513),  when  the  government  passed  into  the  control  of  a  President  and 
Council  appointed  by  the  Crown.     {Conn.  Col.  Bee.,  Ill,  207,  note). 

*  Savage  (Winthrop,  II,  207,  note)  observes  that  without  the  Assistants 
"  the  Governor  would  have  been  nothing  and  with  them  his  power  seems 
to  have  been  hardly  more  than  that  of  primus  inter  pares."  He  presided 
over  the  sittings  of  the  Council  and  was  entitled  to  one  vote  at  all  times, 
and  two  when  there  was  a  tie.  {Ibid;  Hutchinson,  II,  15;  Palfrey,  III, 
71-2,  74;  Barry's  Hist,  of  Mass.,  II,  16,  17). 

^Mass.  Col.  Bee.,  I,  10;  Chalmers,  137,  436. 

*  Randolph's  Presemt  State  of  New  England,  published  in  Perry's  Historieal 
Papers  of  the  American  Colonial  Church,  2-3;  Washburn's  Judicial  History  of 
Massachusetts,  23. 


105]  Massachusetts.  13 

Yet  the  exercise  of  this  authority,  as  broadly  outlined  in  the 
charter/  did  not  go  unchallenged.  Before  the  details  of  the 
Council's  power  could  become  crystallized  into  precedents 
which  could  be  cited  as  historical  grounds  for  its  activity, 
it  encountered  the  opposition  of  the  Deputies.  The  latter 
attempted  first  to  gain  admittance  to  the  executive  Council, 
but  failing  in  this,  they  tried  to  make  it  strictly  dependent 
upon  the  General  Court.^  This  acrimonious  contest  was  finally 
settled  by  referring  the  matter  to  the  elders — the  sacred  oracles 
of  the  colony — who,  as  usual,  declared  in  favor  of  the  patri- 
cians. Hence  the  composition  and  powers  of  the  Executive 
Council  remained  in  statu  quo.  The  Deputies,  frustrated  in 
their  first  attempt  to  share  the  executive  function  with  the 
Council,  then  resorted  to  various  schemes,  by  which  they  still 
hoped  to  diminish  its  powers.^ 

^  Chalmers'  Political  Annals,  137 ;  Mass.  Col.  Rec,  I,  10. 

*The  first  conflict  arose  in  1643,  when  the  General  Court  committed  the 
affairs  of  the  colony  during  its  recess  to  the  Magistrates  and  the  Deputies 
of  Boston,  Charlestown,  Cambridge,  Roxbury  and  Dorchester.  {^Mass.  Col. 
Rec.,  II,  46).  This  addition  of  Deputies  to  the  Executive  Council  was 
opposed  by  the  Magistrates,  who  contended  that  it  was  an  infringement 
upon  their  charter  rights.  The  controversy  was  renewed  the  next  year 
when  the  Deputies  made  a  proposition  that  the  General  Court  issue  commis- 
sions "  whereby  power  was  given  to  seven  Magistrates  and  three  Deputies 
and  Mr.  Ward  (some  time  pastor  of  Ipswich  and  still  a  preacher)  to  order 
all  affairs  of  the  commonwealth  in  the  vacancy  "  of  that  body.  ( Winthrop, 
II,  204-5).  They  contended  in  support  of  this  act  that  "  the  Magistrates 
had  no  power  out  of  the  General  Court  but  what  must  be  derived  "  from  it. 
This  proposition  was  also  rejected  by  the  Assistants  as  "  an  innovation  upon 
the  charter."  They  were  then  tendered  "a  commission  for  war  only," 
which  they  likewise  rejected.  They  also  refused  to  suspend  the  exercise 
of  their  executive  power  until  the  matter  could  be  settled  at  the  next 
General  Court.     {Rid.,  204-206). 

'Winthrop,  II,  282-284.  They  enacted  such  "a  body  of  law,  with  pre- 
script penalties  in  all  cases"  that  "nothing  might  be  left  to  the  discretion 
of  the  Magistrates."  Many  of  them  were  agreed  upon  by  the  Magistrates, 
but  they  finally  returned  some  with  their  non-concurrence.  The  Deputies 
then  complained  that  the  Magistrates  "  would  have  no  laws."  They  also 
expressed  opinions  contrary  to  the  decision  of  the  Magistrates  when  acting 
in  this  capacity, — all  of  which  tended  "to  weaken  the  authority  of  the 
Magistrates  and  their  reputation  with  the  people."     {Ibid.). 


14  Colonial  Origins  of  New  England  Senates.         [106 

In  the  second  charter^  provision  was  made  for  the  estab- 
lishment of  a  Council  of  twenty-eight  members  ^  to  be  chosen 
by  the  Assembly,  subject  to  the  approval  of  the  Governor. 
The  executive  powers  of  this  body  differed  somewhat  from 
those  which  it  had  previously  exercised.  It  was  deprived  of 
the  power  to  grant  land,'  but  in  connection  with  the  Governor, 
was  given  authority  to  nominate  and  appoint  judges,  commis- 
sioners of  Oyer  and  Terminer,  sheriffs,  provosts,  marshalls, 
justices  of  the  peace  and  other  officers  of  the  "  Council  and 
Courts  of  Justice,"  *  to  issue  warrants  for  disposing  of  public 
revenues ;  ®  and  to  exercise  martial  law  upon  the  inhabitants.* 
It  also  gave  the  entire  executive  authority  into  the  hands  of 
the  Council  upon  the  death  or  absence  of  the  Governor  and  the 
Lieutenant  Governor.^  In  addition  to  these  duties,  numerous 
other  executive  powers  were  granted  it  by  the  legislature  from 
time  to  time.^ 


'The  temporary  and  reactionary  periods  of  Androa'  rule  demands  no 
attention  in  this  connection. 

'  This  requirement  was  not  always  strictly  observed.  Between  1741  and 
1766,  whenever  the  Governor  rejected  any  of  the  twenty-eight  names  sug- 
gested by  the  Assembly,  their  places  were  left  vacant,  the  Assembly  refusing 
to  nominate  others  by  way  of  retaliation.  (Hutchinson,  III,  p.  152).  This 
finally  led  to  the  formation  of  a  list  of  "  Mandamus  Counsellors."  ( Palfrey, 
IV,  433). 

'Acta  and  Res.  of  the  Prov.  of  Mass.  Bay,  I,  17. 

*  Ibid.,  12 ;   Douglass'  Summary  of  Amer.,  I,  473,  486. 

*  Acts  and  Res.,  16,  218 ;  Randolph's  Pres.  State  of  New  England  in  Perry, 
19 ;  Palfrey,  III,  74. 

'Acts  and  Res.,  I,  18. 

'  IMd.,  19,  VII,  283,  note ;  Poore's  Charters  and  Constitutions,  I,  953.  The 
administration  devolved  upon  the  Council  for  the  first  time,  July  7,  1701, 
though  there  was  at  that  time  some  doubt  as  to  whether  the  Council  or  its 
President  should  exercise  this  function.  (Hutchinson,  II,  117).  In  1704, 
the  Queen  directed  that  under  such  circumstances  the  eldest  counsellor 
should  preside,  but  it  was  never  observed,  because  contrary  to  the  charter. 
{Ibid.,  191). 

^  They  were  given  privileges  to  grant  licenses  for  erecting  buildings  in 
Boston  (Acts  and  Res.,  I,  42,  405),  admitting  and  removing  settlers  {Ibid., 
90, 194, 402) ;  allowed  to  award  bounties  {Ibid.,  473),  appoint  commissioners 


107]  Massachusetts.  15 

A  conflict  arose  over  the  extent  of  power  conferred  by  the 
clause  which  gave  the  Governor  and  Council  authority  to  sign 
warrants  for  the  disposal  of  public  money.  This  struggle 
extended  over  a  period  of  several  years/  and  was  not  ultimately 
settled  until  the  formation  of  the  constitution  of  1780.^ 


{Ibid.,  385,  211,  473),  reward  services  (Ibid.,  424),  appoint  certain  courts 
{Ibid.,  719),  reprieve  condemned  persons  (Randolph's  Pres.  State  of  2^ew 
Eng.),  etc. 

'  This  power  seems  to  have  been  the  first  under  the  new  charter  to  be 
assailed  by  the  Representatives.  In  1695  the  legislature  passed  an  act  to 
the  effect  that  "  no  public  money  be  or  ought  to  be  disposed  of  by  his  excel- 
lency, the  Governor,  and  Council,  but  for  the  uses  and  intents  of,  and 
according  to  the  acts  by  which  the  said  money  is  raised."  {Acts,  170). 
This  act  was  repealed  by  the  King  in  Council  a  year  later.  {Ibid.,  note). 
By  degrees,  however,  the  House  "  acquired  from  the  Governor  and  Council 
the  keys  of  the  treasury,"  and  by  the  year  1728,  "  no  moneys  could  be  issued 
without  the  vote  of  the  House  for  that  purpose"  (Hutchinson,  II,  266),  and 
the  right  of  the  Representatives  to  originate  money  bills  was  undisputed. 
"  But  they  went  further  and  intrenched  upon  the  charter  rights  of  the 
Council  and  allowed  no  payment  to  be  made  for  services  until  ihey  had 
judged  whether  they  were  performed  and  had  passed  a  special  order  for  such 
payment."  {Ibid.).  They  even  voted  that  there  should  be  paid  out  of  the 
treasury  to  the  Speaker  of  the  House  300  pounds  sterling  "to  be  applied  as 
they  shovld  direct."  A-fter  about  three  weeks  of  altercation,  it  was  agreed 
that  100  pounds  should  be  so  allowed,  and  that  200  pounds  be  paid  to  such 
agent  as  should  be  chosen  by  the  whole  Court.  {Ibid.,  272-3).  The  House 
gained  the  point  at  issue,  and  continued  to  designate  the  objects  for  which 
moneys  were  raised,  thus  leaving  nothing  to  the  discretion  of  the  Governor 
and  Council,  until  1729,  when  Governor  Shute  vetoed  an  appropriation  biU 
for  this  reason.  {Ibid.,  322).  The  dispute  which  followed  was  settled 
unfavorably  for  the  House.  {Ibid.,  338-9).  In  1732,  the  Representatives 
succeeded  in  passing  a  bill  not  materially  differing  from  the  old  method. 
{Ibid.,  339).  In  1733,  they  successfully  claimed  a  right  to  audit  the  public 
accounts.  In  later  years  grants  for  the  defense  of  the  province  were  so 
made  that  the  Governor  and  Council  were  restrained  from  drawing  money 
from  the  treasury  "for  any  other  purpose."  Governor  Pownall  submitted 
to  this  invasion  only  under  protest,  on  January  25,  1758,  though  his  prede- 
cessor had  allowed  it  without  complaint.  {Ibid.,  Ill,  66-67).  In  1762,  the 
House  remonstrated  against  the  method  in  which  this  power  had  been 
exercised,  stating  that  it  was  taking  away  "  their  most  darling  privilege," 
and  that  it  was  "annihilating  one  branch  of  the  Legislature."  {Ibid.,  97). 
On  this  subject,  see  also  Minot's  Hist,  of  Mass.,  II,  65  et  seq. 

*  See  in/ro- 


16  Colonial  Origins  of  New  England  Senates.         [108 


Section  III. — The  Judicial  Function. 

One  of  the  many  serious  defects  of  the  first  charter  was  its 
failure  to  provide  for  the  erection  of  a  judicial  system.  Upon 
the  transference  of  the  government  to  the  colony,  the  Assist- 
ants took  advantage  of  this  defect  and,  realizing  the  necessities 
of  the  colony,  clothed  themselves  in  judicial  ermine  and 
transformed  their  court  into  a  tribunal  of  justice.^  Their  mag- 
isterial power,  once  conceded  ^  in  time  of  necessity,  remained 
very  extensive  during  the  existence  of  the  first  charter.^  In 
this  capacity  they  served  not  only  in  the  General  Court,  which 
by  the  law  of  1634,  was  declared  "the  chief  civil  power  of 
the  Commonwealth,"  *  but  in  the  "  great  Quarter  Court "  of 
appeals  established  in  1635-6,'  the  semi-annual  "Court  of 
Assistants"  organized  in  1639,^  as  well  as  in  the  capacity  of 


^  Puritan  Commonwealth,  78. 

*  Mass.  Col.  Rec.,  I,  89. 

'  Washburn's  Judicial  Hist,  of  Mass.,  42. 

*  Col.  Laws  (ed.  1660),  88.  Latchford,  in  his  Plain  Dealing,  written  about 
1640,  says  of  the  General  Courts,  "  They  have  the  power  of  Parliament, 
King's  Bench,  Common  Pleas,  Chancery,  High  Commission  and  Star 
Chamber,  and  all  other  Courts  of  England." 

^Mass.  Col.  Bee.,  I,  169;  Hubbard,  243. 

^  Col.  Laws,  23,  90.  Randolph,  writing  in  1676,  says :  "  There  be  two 
Courts  of  Assistants  yearly  kept  at  Boston  by  the  Governor  or  Deputy 
Governor  and  the  rest  of  the  Magistrates  upon  the  first  Tuesday  in  March 
and  the  first  Tuesday  in  September,  to  hear  and  determine  all  actions  of 
appeal  from  inferior  courts  and  all  capital  and  criminal  causes  extending  to 
life,  member  or  banishment."  {Pres.  State  of  New  Eng.  in  Perry's  Historical 
Papers,  etc.,  3).  They  also  exercised  "  admiralty  jurisdiction  and  appellate 
jurisdiction  in  matters  of  probate."  (Washburn,  30;  Chalmers,  436).  In 
fact,  the  jurisdiction  of  this  Court  was  as  extensive  as  that  of  the  General 
Court  (Washburn,  29)  which  retained  only  appellate  power  {Col.  Laws,  45) 
except  in  chancery  cases  over  which  it  exercised  original  jurisdiction  until 
1685,  when  a  subordinate  system  of  chancery  was  established.  (Washburn, 
28).  After  1642  the  General  Court  exercised  appellate  jurisdiction  over 
criminal  cases  only.    {Col.  Laws,  199). 


109]  Massachusetts.  17 

ex  oficio  justices  in  the  lower  courts  of  the  colony,^  and  indi- 
vidual magistrates  in  the  town  where  they  resided.^ 

Under  the  second  charter,  which  left  to  the  legislature  the 
establishment  of  courts  of  judicature,  the  judicial  power  of  the 
Governor  and  Council  was  greatly  diminished.^  In  fact,  they 
were  granted  jurisdiction  only  in  cases  of  probate  *  and  divorce. 
These  duties,  however,  soon  proved  too  onerous,  and  the 
Governor  and  Council,  by  the  right  of  substitution  which 
they  possessed  as  a  civil  law  court,  created  Judges  of  Probate 
in  every  county,  from  whose  decisions  appeals  could  be  taken 
to  them  as  a  Supreme  Court  of  Probate.*  Thus,  by  the  end 
of  the  colonial  period,  the  Council  had  reduced  its  judicial 
duties  to  a  minimum,  retaining  little  more  than  appellate 
jurisdiction  over  a  very  limited  field  of  judicature. 


1  Hutchinson,  ir,  21 ;  Mass.  Col.  Bee,  I,  169,  175;  Hubbard,  234. 

*This  seems  to  have  been  the  origin  of  the  civil  jurisdiction  of  Justices 
of  the  Peace  in  Massachusetts,  though  Stearns  {Real  Actions,  506)  thinks  it 
began  with  the  act  of  1644,  and  Judge  Parsons  {M.  JR.,  IV,  515)  says  that 
Justices  of  the  Peace  were  not  known  as  oflBcers  under  the  first  charter. 
The  limiting  of  their  individual  jurisdiction  was  first  placed  at  20  shillings, 
but  was  subsequently  (1644)  raised  to  40.  Randolph  {Pres.  Slate  of  New 
Eng.  in  Perry's  Hist.  Papers,  3)  says  that  "  every  Magistrate  is  a  Justice 
of  the  Peace  and  can  determine  any  cause  under  forty  shillings,  can 
commit  to  prison  and  punish  offenders  for  breach  of  laws  and  impose  fines 
according  to  discretion."  See  Washburn,  36  ;  also  Chalmers,  37 ;  Maaa.  (M. 
Bee.,  I,  276, 

^  The  powers  of  the  General  and  the  Assistants'  Courts  were  granted  to  a 
Superior  Court,  those  of  the  County  Courts  to  Courts  of  Common  Pleas  and 
Quarter  Sessions,  while  the  regular  Probate  Courts  exercised  a  part  of  the 
former  powers  of  the  County  Courts  and  the  jurisdiction  of  the  Magistrates 
and  Commissioners  of  small  causes  was  exercised  by  Justices  of  the  Peace. 
Probate  and  divorce  matters  were  left  to  the  Governor  and  Council,  whose 
decisions  were  rendered  by  a  major  vote  of  the  whole  Court.  (Hutchinson, 
II,  451-2). 

*  Washburn,  138,  187. 

*  Washburn,  187.  When  the  Legislature  undertook  to  exercise  the  power 
of  creating  similar  courts,  the  King  negatived  the  act. 

2 


18  Colonial  Origins  of  New  England  Senates.         [110 


Section  IV. — The  Legislative  Function. 

The  legislative  power  of  the  Assistants,  which,  after  the 
transfer  of  the  first  charter  to  the  colony/  rose  so  quickly  to 
high-tide,  soon  began  to  ebb  with  even  greater  rapidity.  Only 
a  short  time  after  the  reaction  set  in,  this  oligarchy  ^ — for  such 
the  government  under  the  Board  of  Assistants  had  become — 
was  stripped  of  its  power  and  replaced  by  a  representative 
government,  which  became  permanently  established  in  1634.^ 


^See  supra.  'Chalmers,  I,  157-8. 

'Opposition  to  the  Assistants  originated  over  a  question  of  taxation.  On 
February  3,  1632-3,  they  levied  a  tax  of  eight  pounds  upon  the  inhabitants 
of  Watertown  {Mass.  Col.  Eee.,  I,  93),  which  evoked  from  tliese  people  a 
protest  that  "  it  was  not  safe  to  pay  moneys  after  that  sort,  for  fear  of  bring- 
ing themselves  and  posterity  into  bondage."  (Winthrop,  I,  84 ;  Lodge,  345). 
Although  this  particular  case  seems  to  have  been  amicably  settled,  the 
freemen  of  the  colony  were  aroused  to  an  assertion  of  their  rights,  and  a 
number  of  reforms  followed  in  its  wake.  T\yo  months  later  (April  3,  1633) 
the  powers  of  the  Governor  were  definitely  defined  (Winthrop,  I,  86),  and 
in  another  month  (May  9, 1633)  the  powers  of  the  Assistants  were  restricted 
by  a  sweeping  act  of  reform  which  required :  1,  That  the  Governor,  Deputy 
Governor  and  Assistants  should  be  elected  by  the  freemen ;  2,  That  these 
officers  should  be  "new  chosen  every  year"  ;  and  3,  That  there  should  \)e 
"two  of  every  plantation  appointed  to  confer"  with  the  Governor  and 
Assistants  "about  raising  of  a  public  stock."  {Mass.  Col.  Rec,  I,  95 ;  Win- 
throp, I,  90,  91 ;  Hutchinson,  I,  30;  Holmes'  Annals  of  America,  I,  258). 
The  last  of  these  acts  meant  that  the  Court  of  Assistants  was  no  longer 
recognized  as  a  representative  assembly,  and  that  the  people  were  deter- 
mined to  levy  taxes  only  through  their  representatives. 

The  rapid  acquisition  of  authority  by  representatives  of  the  towns,  and 
the  corresponding  loss  of  power  by  the  Assistants,  is  remarkable.  In  1632, 
representatives  of  the  towns  were  permitted  only  to  " advise"  and  " agree" 
with  the  Assistants  on  matters  of  taxation.  Two  years  later  they  were 
instructed  "  to  meet  and  consider  of  such  matters  as  they  were  to  take  in 
order"  at  the  next  General  Court.  (Winthrop,  I,  152  el  aeq.).  But  when 
they  met  this  time  they  questioned  the  right  of  the  Assistants  to  make  laws, 
and  contended  that  the  charter  granted  such  privileges  only  to  the  General 
Court.  In  spite  of  the  Governor's  attempt  to  evade  the  issue  {Ibid.,  153) 
a  body  of  twenty-four  representatives  appeared  at  the  next  General  Court, 
and  were  fully  incorporated  into  the  legislative  body  of  the  colony.    At 


Ill]  Massachusetts.  19 

At  this  date  the  General  Court  became  the  legislature  of  the 
colony,  and  was  composed  of  the  Assistants  who  represented 
the  colony  as  a  whole  and  the  Deputies  who  represented  the 
towns. 

For  the  next  ten  years  both  bodies  sat  as  one  house  and 
usually  voted  together,  "  without  any  distinction,  the  major 
part  of  the  whole  number  determining  the  vote."  The  number 
of  Assistants,  however,  was  limited  by  the  charter,  while  the 
Deputies  were  allowed  to  increase  with  the  formation  of  new 
towns.  Hence  there  arose  a  struggle  for  existence,  on  the  part 
of  the  Assistants.  A  Council  for  life  was  established  in  order 
to  strengthen  their  ranks.^  Yet  had  not  the  Assistants  taken 
the  following  precaution,  they  would  have  lost  "all  their 


this  Court  several  radical  reforms  were  introduced.  Besides  electing  a  new 
man  for  Governor,  and  fining  the  Assistants  for  their  past,  conduct,  the  free- 
men enacted :  1,  That  the  General  Court  alone  had  power  to  admit  freemen ; 

2,  To  make  laws,  to  elect  and  remove  officers,  and  to  define  their  duties ; 

3,  To  raise  moneys  and  taxes  and  to  dispose  of  lands;  4,  That  there  were 
to  be  no  trials  for  life  or  banishment  except  by  a  jury,  or  by  the  General 
Court ;  5,  That  there  were  to  be  four  General  Courts  held  annually  which 
were  not  to  be  dissolved  without  their  consent ;  and  6,  That  Deputies  were 
to  be  elected  and  given  "  the  full  power  &  voyces  of  all  the  .  .  .  ffreemen, 
deryved  to  them  for  the  makeing  &  establishing  of  lawes,  graunting  of 
lands,  &c.,  &  to  deale  in  all  other  affaires  of  the  comonwealth  wherein  the 
ffreemen  haue  to  doe,  the  matter  of  eleccon  of  magistrates  &  other  officers 
onely  excepted,  wherein  euy  freeman  is  to  gyve  his  owne  voyce."  {Mass. 
Col.  Bee,  I,  117-9 ;  Hutchinson,  I,  39-40 ;  Grahame,  I,  169). 

^At  a  General  Court  held  March  3,  1635-6,  it  was  ordered  that  at  the 
next  election  there  should  be  chosen  "  a  certaine  number  of  Magistrates  for 
tearme  of  their  lives."  {Mass.  Col.  Bee,  I,  167).  This  act  so  contrary  to 
both  the  spirit  and  the  letter  of  the  Charter  {Ibid.,  10),  was  passed  through 
the  combined  influence  of  the  Assistants  and  the  clergy  (Oliver's  Puritan 
CommonweaUh,  63),  ostensibly  to  conform  to  the  teachings  of  the  Bible,  but 
really  to  counteract  the  rapidly  developing  power  of  the  freemen,  by 
tempting  over  to  the  colony  "  some  of  the  peers  and  other  leading  men 
who  might  expect  at  home,  in  due  season,  to  be  raised  to  the  upper  house." 
(Winthrop,  I,  219-220,  note).  It  was  virtually  repealed  on  June  6,  1639. 
{Ibid.,  363-4;  Hubbard,  244;  Mass.  Col.  Bee,  I,  167,  264).  Savage  (Win- 
throp, I,  364,  note)  observes  that  this  is  probably  the  only  instance  of  an 
election  for  life  to  any  legislative  or  executive  office  in  our  country. 


20  Colonial  Origins  of  New  England  Senates.         [112 

weight  in  the  legislative  part  of  the  government."  ^  Through 
their  influence,  it  was  enacted  in  1635  that  "  noe  lawe,  order,  or 
sentence  shall  passe  as  an  act  of  the  Court,  without  the  consent 
of  the  great'  pte  of  the  magistrates  on  the  one  pte,  &  the 
great'  number  of  the  deputyes  on  the  other  pte ;  &  for  want 
of  such  accorde,  the  cause  or  order  shalbe  suspended,  & 
if  either  ptie  think  it  soe  materiall,  there  shalbe  forthwith 
a  cornitte  chosen,  the  one  halfe  by  the  magistrates,  <fe  the 
other  halfe  by  the  deputyes,  &  the  comittee  soe  chosen  to 
elect  an  vmpire,  who  togeather  shall  have  power  to  heare  & 
determine  the  cause  in  question."  ^  This  act,  however,  seems 
to  have  been  soon  forgotten  in  the  conflicts  ^  which  arose  over 
the  exercise  of  the  "  negative  power."  The  Assistants  main- 
tained that  they  had  a  charter  right  to  such  a  power,  while 
the  Deputies,  being  in  the  majority,  contended  for  a  joint  vote 
on  all  matters.     These  struggles  finally  resulted  in  the  intro- 


1  Hutchinson,  I,  396-7.  ^  Mass.  Col.  Bee.,  I,  170. 

'  The  first  occasion  for  such  a  disagreement  arose  over  the  request  of  Mr. 
Hooker  and  his  congregation  for  permission  to  remove  to  Connecticut.  The 
Governor,  two  Assistants  and  fifteen  Deputies  favored  the  request,  while  the 
Deputy  Governor,  five  Assistants  and  ten  Deputies  opposed  it.  Thus  the 
majority  vote  of  the  two  bodies  taken  separately  diflfered,  but  on  a  joint 
ballot  it  stood  eighteen  to  sixteen  against  the  Assistants.  The  Assistants, 
however,  maintained  their  right  to  negative  the  vote  of  the  Deputies,  and 
were  successful  through  the  influence  of  Mr.  Cotton,  who  preached  a  sermon 
on  this  subject  at  an  interval  given  for  fasting  and  prayer,  when  the  struggle 
had  reached  its  height.  The  Deputies  yielded  only  in  this  particular  case, 
without  a  final  concession  of  the  point.  (Winthrop,  1, 167-9;  Hutchinson, 
I,  47).  For  the  prevention  of  such  dead-locks  in  the  future,  the  act  cited 
above  was  then  passed.  These  struggles  finally  terminated  in  the  celebrated 
case  concerning  the  possession  of  a  hog.  On  this  point  a  majority  of  the 
two  bodies  disagreed  upon  a  separate  vote.  The  Deputies  insisted  upon  a 
joint  ballot,  which  gave  them  a  majority.  Though  the  "sow  business"  was 
never  decided,  the  controversy  resulted  in  the  settlement  of  the  constitu- 
tional question  in  dispute.  (Winthrop,  II,  83-86,  139-143).  The  Magis- 
trates ofl^ered  the  next  year  to  surrender  their  negative  power  if  the  freemen 
would  consent  that  their  representatives  should  not  exceed  them  in  number 
and  should  be  "  elected  by  the  shires  instead  of  the  towns."  The  proposition 
was  rejected  and  probably  never  again  renewed.     (Winthrop,  II,  214). 


113]  Massachitsetts.  21 

duction  of  the  bicameral  system,  and  in  granting  to  each  body 
a  negative  over  all  the  legislative  acts  of  the  other.^ 

From  the  date  of  this  separation,  March,  25,  1644,  the  two 
bodies  were  distinct,  and  their  powers  began  to  differentiate. 
The  Deputies  became  what  Chalmers  calls  "the  democratic 
branch  of  the  legislature,'"^  while  the  Council  took  on  the 
functions  of  an  upper  house,  though  still  retaining  its  separate 
position  as  an  executive  advisory  body. 

In  its  subsequent  evolution,  as  a  branch  of  the  legislature, 
the  Council  underwent  one  radical  change  in  membership. 
This  was  the  removal  of  its  two  ex  officio  members, — the 
Governor  and  the  Lieutenant  Governor.  The  former  ceased 
to  be  a  member  of  the  Legislative  Council  in  1716^  and  the 


'  See  Prof.  T.  F.  Moran's  Rise  and  Development  of  the  Bicameral  System  in 
America,  J.  H.  U.  Studies,  Thirteenth  Series,  V,  8-13.  This  order,  not  by 
hurtfuUy  withdrawing  a  power  from  the  Magistrates  as  had  been  attempted, 
but  by  beneficially  conferring  an  equal  power  upon  the  Deputies,  deter- 
mined the  great  contention  about  the  negative  voice  and  completed  the 
frame  of  the  internal  government  of  Massachusetts,  destined  to  undergo  no 
farther  change  for  forty  years.''  (Palfrey,  I,  259).  A  modification  of  this 
law  was  soon  found  necessary  in  judicial  matters,  since  it  would  have  pre- 
vented any  decision  in  many  cases.  It  was,  therefore,  agreed  in  1652,  that 
the  veto  power  should  be  exercised  only  in  legislative  matters  and  that  the 
two  houses  should  vote  together  in  their  judicial  capacity,  when  they  were 
unable  to  reach  a  conclusion  separately.  {Mass.  Col.  Eec.,  Ill,  179 ;  IV,  pt. 
1,  82;  Hutchinson,  I,  134-5). 

*Polit.  Annals,  166.  Douglass  (Summary,  I,  213-4)  calls  the  Councils  the 
" aristocratical "  and  the  Kepresentatives  the  "democratic"  elements  of  the 
colonial  legislatures. 

'  Under  the  first  charter,  the  Council  was  composed  of  the  Assistants,  the 
Governor  and  the  Deputy  Governor.  It  was  presided  over  by  the  Governor 
or,  in  his  absence,  by  the  Deputy  Governor,  who  was  not  given  a  veto  power 
and  was  therefore  in  1641  allowed  a  vote  in  its  proceedings.  His  power  as 
a  presiding  officer  was  little  more  than  that  of  the  other  members.  If  he 
refused  to  put  to  vote  a  question  opposed  to  his  views,  it  could  be  done  by 
any  other  member  of  the  body.  (Hutchinson,  I,  62-3).  The  second  charter 
gave  him  a  veto  power,  but  was  silent  as  to  whether  he  should  be  considered 
a  member  of  the  Council  in  its  legislative  capacity.  Since  departures  from 
old  precedents  were  made  only  by  degrees,  his  claims  to  a  seat  were  asserted 
and  conceded  only  at  intervals.    Lord  Bellomont  (1699-1700)  and  Governor 


22  Colonial  Origins  of  New  England  Senates.         [114 

latter  in  1767/  but  both  continued  to  hold  their  positions  in 
this  body  when  it  acted  in  an  executive  capacity. 

There  was  also  an  important  change  iu  the  relations  between 
the  two  branches  of  the  Legislature.  The  Council  lost  the 
power  to  originate  money  bills,  and  this  function  came  to  be 
exercised  by  the  Deputies  alone.  On  this  point  Hutchinson 
observes  that  the  House  had  "  by  degrees  acquired  from  the 
Governor  and  Council  the  keys  of  the  treasury  and  no  money 
could  be  issued  without  the  vote  of  the  House  for  that  pur- 


Dudley  (1702-1716)  considered  themselves  not  only  members,  but  heads  of 
the  Council  in  both  its  executive  and  legislative  capacities.  They  sat  with 
the  Counsellors,  directed  their  debates  and  proposed  all  their  business.  The 
Governors  who  came  into  office  after  1716  neglected  to  contend  for  such 
privileges  and  thus  ceased  to  be  regarded  as  members  of  the  legislative 
Council. 

^  It  was  evidently  intended  for  the  Lieutenant  Governor  to  be  an  ex  officio 
member  of  the  upper  house  of  the  legislature  under  the  second  charter  as 
he  had  been  under  the  first.  Mr.  Stoughton,  the  first  Lieutenant  Governor 
under  the  second  charter,  though  not  at  first  elected  a  member  of  the 
Council  was  considered  "  a  Counsellor,  ex  officio,  and  voted  and  was  upon 
committees  the  whole  year."  (Acts  and  Resolves  of  Prov.  of  Mass.  Bay,  VII, 
6,  note;  Hutchinson,  II,  174).  At  the  second  election  he  was  regularly 
chosen  one  of  the  twenty-eight  Counsellors  as  well  as  Lieutenant  Governor, 
and  was  therefore  doubly  entitled  to  a  seat  in  that  body.  His  immediate 
successors  also  attended  the  meetings  of  the  Council  whether  so  selected  or 
not,  but  they  vote^l  in  its  proceedings  only  when  elected  as  Counsellors.  In 
1732  the  rights  of  the  Lieutenant  Governor  to  an  ex  efficio  seat  in  the  Council 
when  sitting  in  its  legislative  capacity  was  first  challenged  in  the  case  of 
Mr.  Phipps,  who  having  been  elected  Lieutenant  Governor  against  the 
desire  of  the  Governor,  was  forbidden  by  the  Governor  to  sit  in  that  body 
**  unless  he  should  be  elected  by  the  Assembly  and  approved  by  the  Gov- 
ernor." The  question  was  finally  settled  in  1767  when  Lieutenant-Governor 
Hutchinson  failed  to  be  elected  to  the  Council.  He  was  in  constant  attend- 
ance upon  the  meetings  of  the  Council  during  the  first  session  after  his 
defeat,  but  "did  not  vote  nor  take  any  share  in  the  debates."  At  the  second 
session,  however,  his  attendance  was  characterized  by  the  House  as  "  a  new 
and  additional  instance  of  ambition  and  lust  of  power"  (Hutchinson,  III, 
175  et  seq.),  and  in  spite  of  the  efforts  of  the  Governor  and  other  friends, 
the  House  successfully  maintained  its  position  and  the  Lieutenant-Governor 
ceased  to  be  an  ex  officio  member  of  the  upper  branch  of  the  Legislature. 
{Ibid.,  176-7). 


115]  Massachusetts,  23 

pose."  ^  Hence,  in  1744  the  Governor  requested  the  Assembly 
to  grant  him  and  his  Council  power  "  to  draw  upon  the  treas- 
urer" as  occasion  might  require.^ 


Section  V. — The  Proposed  Constitution  of  1778. 

During  the  revolutionary  period  the  Council  retained  the 
powers  which  had  been  granted  by  the  second  charter.^  But 
the  necessity  for  a  more  perfect  constitution  was  soon  recog- 
nized by  the  people,  and  efforts  were  early  made  to  prepare 
one,  although  the  perturbed  state  of  society,  occasioned  by 
the  war  was  not  very  favorable  to  such  an  undertaking.*  To 
meet  this  necessity  a  committee  appointed  by  the  General 


'  Hist,  of  Mass.,  II,  266,  303 ;  III,  66.  The  struggles  over  the  exercise  of 
this  power  by  the  House  and  its  effect  upon  the  executive  authority  of  the 
Council  has  been  noted  in  detail.     See  supra,  p.  15,  note  1. 

*  Douglass'  Summary,  I,  473.  In  the  preceding  treatment,  the  develop- 
ment of  the  Council  in  the  Plymouth  colony  has  been  omitted  because 
the  affairs  of  that  settlement  exerted  little  or  no  influence  upon  the 
constitutional  development  of  Massachusetts  into  which  it  was  merged  in 
1691.  See  Moore's  Lives  of  the  Oovemors  of  New  Plymouih  and  Mass.  Bay, 
228.  The  history  of  the  Council  of  New  Plymouth  is,  nevertheless,  unique 
because  of  the  peculiar  way  in  which  it  originated.  Upon  the  death  of 
Governor  Carver  in  1621,  William  Bradford  was  chosen  Governor  and  he 
"  being  not  yet  recovered  of  his  lines,  in  which  he  had  been  near  y«  point 
of  death  Isaak  Allerton  was  chosen  to  be  an  Assistante  unto  him."  (Brad- 
ford's Hist,  of  Plymouth  Plantation  in  Mass.  Hist.  Coll.,  Fourth  Series,  Vol. 
Ill,  101).  This  choice  of  an  Assistant  which  was  made,  not  as  a  matter  of 
principle  but  as  a  temporary  expedient,  furnished  the  precedent  for  a  per- 
manent change  in  the  constitution  of  the  colony.  The  number  of  Assistants 
was  afterwards  increased  to  five  (1624)  and  then  to  seven  (1633).  Their 
duties  were  at  first  confined  to  the  executive  and  judicial  departments,  but 
with  the  introduction  of  representative  government  they  became  a  part  of 
the  law-making  body  of  the  colony.  See  Prof.  G.  H.  Haynes'  Representation 
and  Suffrage  in  Mass.,  1620-1691,  J.  H.  U.  Studies,  Twelfth  Series,  VIII- 
IX,  Chapter  V. 

^  Bradford's  Hist,  of  Mass.,  40  el  seq. 

*  Ibid.,  ^2. 


24  ColonicU  Origins  of  New  England  Senates.         [116 

Assembly  reported  to  that  body  a  draft  of  a  constitution  in 
January,  1778,  which  was  rejected  by  the  people.^ 

In  this  constitution  the  Senate  is  a  more  or  less  accurate 
reproduction  of  the  Council  of  the  second  charter.  Article 
XXXII  required  that  all  laws  which  "  refer  to  and  mention 
the  Council "  should  be  "  construed  to  extend  to  the  Senate."  ^ 
Both  instruments  provided  for  the  annual  election  of  twenty- 
eight  members  of  this  body  ^ — by  the  Assembly,  according  to 
the  charter,  but  by  the  freemen  according  to  the  constitution.* 
Both  required  a  residence  qualification,*^  but  the  constitution 
added  to  this  a  property^  and  a  religious^  qualification,  and 
disqualified  certain  other  officers  of  the  State  from  a  seat  in 
either  branch  of  the  General  Court.*  The  authority  of  the 
Council  under  this  constitution,  as  under  the  charter,  was 
principally  executive  and  legislative, — its  judicial  power  being 
restricted  to  the  trial  of  impeachments.^ 

When  sitting  in  a  legislative  capacity  both  the  Senate  and 
the  House  of  Representatives  had  equal  rights  "  to  originate 
or  reject  any  bill,  resolve  or  order  or  to  propose  amendments ; 
except  in  case  of  money  bills,  which  were  to  originate  in  the 
House  of  Representatives  only.^" 

The  Governor  and  Senate  were  to  constitute  the  executive 
body  of  the  State,  the  former  still  retaining  his  position  as 
primus  inter  pares}^  The  executive  power  of  the  Governor, 
exclusive  of  the  Upper  House,  was  still  very  limited.  With 
the  advice  and  consent  of  the  Senate,  however,  he  could  march 


^  Ibid.,  140.  This  was  done  chiefly  because  it  contained  no  Bill  of  Rights. 
Still  it  is  important  in  this  connection,  since  it  embodies  the  political  ideas 
of  a  representative  body  of  the  people  at  that  time,  and  serves  as  a  con- 
necting link  between  the  colonial  and  state  governments. 

'  A  draft  of  this  constitution  is  given  in  Appendix  to  Bradford's  Hist,  of 
Mass. 

'  Constitution,  Art.  VIII. 

*  Ibid.,  Art.  IX.  *  Ibid.,  Art.  III.  ^  Ibid.,  Art.  III. 

^ Ibid.,  Art.  XXIX.  s/Std.,  Art.  IV.  »md.,  Art.  XX. 

lOiJtd.,  Art  XIV.  "Z6id.,  Art.  XVII,  XXII. 


117]  Massachusetts.  25 

the  militia  out  of  the  State ;  ^  prorogue  the  General  Court ;  ^ 
lay  an  embargo  and  prohibit  the  exportation  of  any  commodity 
for  a  limited  time ;  ^  appoint  all  officers,  both  civil  and  mili- 
tary, whose  appointment  was  not  reserved  to  the  General 
Court,*  and  sign  warrants  for  the  disposal  of  all  public  money, 
"  agreeably  to  the  acts  and  resolves  of  the  General  Court." ' 
"  In  case  of  a  vacancy  in  the  office  of  Governor  and  Lieutenant 
Governor,"  the  executive  authority  was  to  devolve  upon  "  the 
major  part  of  the  Senate."  ^ 


Section  VI. — The  Gonstitution  of  1780. 

A  second  and  more  successful  effort  at  constitution-making 
was  made  in  1780.^  This  instrument  marks  the  last  step  in 
the  evolution  of  the  Senate.  Then  for  the  first  time  in  the 
history  of  Massachusetts,  were  the  executive,  legislative  and 
judicial  powers  emphatically  declared  "  separate  and  distinct."  ^ 
The  powers  formerly  exercised  by  the  Council  were,  therefore, 
delegated  to  two  separate  bodies,' — a  Senate,  which  performed 
the  legislative,  and  a  newly  created  Council,  which  performed 
the  executive  and  advisory  function.     The  qualifications  for 


Ubid.,  Art.  xy II.  ^Ibid. 

3  Ibid.,  Art.  XXI.  *Ibid.,  Art.  XIX. 

'  Ibid.,  Art.  XXXII.    This  limit  to  the  power  of  the  Council  had  been  a 
cause  of  contention  for  several  years.     See  supra. 
6/6id,  Art.  XVIII. 
'  A  copy  of  this  constitution  is  given  in  Poore's  Charters  and  Constitutions, 

I,  956-973. 

®  Bill  of  Rights,  Art.  XXX.  Yet  "  all  causes  of  marriage,  divorce  and 
alimony  and  appeals  from  the  judges  of  probate"  were  to  be  "heard  and 
determined  by  the  Governor  and  Council "  until  the  General  Court  should 
make  other  provisions.  (Chap.  Ill,  Art.  5).  These  were  the  last  remnants 
of  judicial  power  exercised  by  the  Governor  and  Council  under  the  second 
charter. 

^  The  seats  of  senators  elected  to  the  Council  were  declared  vacant.    (Chap. 

II,  Sec.  3,  Art.  II). 


26  Colonial  Origins  of  New  England  Senates.         [118 

membership  in  each  body  were  the  same,^  and  their  members 
M^ere  chosen  at  the  same  time  and  in  the  same  way — a  fact 
which  suggests  their  common  origin.^  This  method  of  election 
was  of  a  double  nature  and  combined  the  practices  under  both 
charters — an  election  by  the  people  and  then  by  the  General 
Court.3 

The  Executive  Council  consisted  of  nine  persons  besides 
the  Lieutenant  Governor,*  five  of  whom  constituted  a  quorum. 
It  was  convened  at  the  discretion  of  the  Governor,  "  for  the 
ordering  and  directing  the  affairs  of  the  commonwealth  accord- 
ing to  the  laws  of  the  land."  ®  As  under  the  second  charter, 
the  Council  assumed  the  functions  of  the  chief  executive  upon 
the  vacancy  of  the  office  of  Governor  and  Lieutenant  Gov- 
ernor.* With  the  advice  and  consent  of  the  Council,  the 
Governor  could  exercise  the  pardoning  power,^  appoint  judicial 
officers,  fill  vacancies  under  certain  conditions,^  and  appoint 
such  officers  of  the  continental  army  as  were  allowed  to  the 
State  by  the  Confederation  of  the  United  States.  The  power 
to  advise  the  Governor  as  to  the  signing  of  warrants  for  the 
disposition  of  public  moneys,  which  was  first  granted  to  the 


'  These  qualifications  were  "  a  freehold  within  the  commonwealth  of  the 
value  of  three  hundred  pounds,"  "personal  estate  to  the  value  of  six  hundred 
pounds,"  a  residence  of  five  years  within  the  State  and  a  residence  within 
the  district  for  which  he  is  chosen  at  the  time  of  his  election.  (Chap.  II, 
Sec.  2,  Art.  V). 

'  Members  of  both  bodies  were  elected  by  the  Senators  and  Representa- 
tives on  a  joint  ballot  from  a  list  of  forty  names  which  were  chosen  by  the 
people  "  to  be  Counsellors  and  Senators."  (Chap.  I,  Sec.  2,  Art.  I ;  Chap. 
II,  Sec.  3,  Art.  II). 

» Chap.  I,  Sec.  2,  Articles  I,  II. 

*  Under  the  charters  the  Governor  and  Lieutenant  Governor  came  to  be 
members  of  the  Council  only  in  its  executive  capacity.    See  supra. 

»  Chap.  II,  Sec.  I,  Art.  IV ;  Ibid.,  Sec  3,  Art.  I. 

«Chap.II,  Sec.  3,  Art.  VI. 

'Chap.  II,  Sec.  1,  Art.  VIII.  Under  the  second  charter  the  Governor 
and  Council  were  allowed  to  grant  only  reprieves,  while  the  power  to  grant 
pardons  rested  with  the  General  Court. 

Ubid.,  Art.  IX. 


119]  Massachusetts.  27 

Council  by  the  second  charter,  was  renewed  in  the  Constitution 
of  1780  with  a  few  exceptions/ 

The  legislative  department  was  composed  of  a  Senate  ^  and  a 
House  of  Representatives,  each  of  which  had  a  negative  on 
the  other.*  The  two  bodies  differed  as  to  privileges  in  only 
two  respects:  (1),  The  Senate  had  power  to  try  impeach- 
ments,* and  (2),  The  House  had  exclusive  right  to  originate 
money  bills/ 


'  Ibid.,  Art.  XI.  These  exceptions  applied  to  "  such  sums  as  may  be 
appropriated  for  the  redemption  of  bills  of  credit  or  treasurer's  notes  or  for 
the  payment  of  interest." 

*  This  body  consisted  of  thirty-one  members, — nine  out  of  the  list  of  forty 
returned  for  "  Counsellors  and  Senators "  {supra,  26,  note  2)  being  chosen 
for  the  former  office.  The  Senators  were  apportioned  according  to  districts 
(Chap.  I,  Sec.  2,  Art.  I). 

^Chap.  I,  Sec.  1,  Art.  I.  This  question  was  brought  up  and  settled  under 
the  first  charter.     See  supra. 

*  Chap.  I,  Sec.  2,  Art.  VIII.  The  party  so  convicted  was,  nevertheless, 
"  liable  to  indictment,  trial,  judgment  and  punishment  according  to  the  laws 
of  the  land." 

5  Chap.  I,  Sec.  3,  Art.  VII.  This  power  was  acquired  under  the  second 
charter.    See  supra. 


CHAPTER  II. 

Connecticut. 

Section  I. —  Governmental  Beginnings. 

Whatever  may  have  been  the  occasion  for  the  removal  of 
the  inhabitants  of  Newtown  (Hartford),  Dorchester  (Windsor) 
and  Watertown  (Wethersfield)  from  their  first  location  in  Mas- 
sachusetts to  the  region  of  the  Connecticut  River/  they  carried 
with  them  the  form,  if  not  the  spirit,  of  the  political  and 
religious  institutions  of  the  mother  colony,^  under  whose  gov- 
ernment they  continued  for  several  months  after  their  removal.' 
Their  only  assembly  was  a  court  held  at  each  town  in  turn 
and  composed  of  two  magistrates  from  each,  except  when 


^  Doyle  {Eng.  Colonies  in  Amer.,  II,  159)  thinks  that  they  did  not  with- 
draw "out  of  any  dissatisfaction  or  with  any  craving  for  political  changes." 
while  Johnston  {Conn.,  Amer.  Commonwealth  Series,  64)  characterizes  this 
removal  as  "  a  secession  of  the  democratic  element  from  Massachusetts." 
On  this  subject  see  also  Trumbull's  Memorial  History  of  Hartford  County,  I, 
19  e<  seq. 

^Morey's  Genesis  of  a  Written  Constitution,  Annals  of  Amer.  Acad.,  I,  551 ; 
Johnston's  Genesis  of  a  New  Eng.  State,  J.  H.  U.  Studies,  First  Series,  13- 
14;  Palfrey,  I,  233;  Bond's  Hist,  of  Watertown,  Mass.,  1,  980;  Hartley's 
Hartford  in  the  Olden  Time,  49 ;  Stiles'  Hist,  of  Ancient  Windsor,  25,  note ; 
Loomis  and  Calhoun's  Judic.  and  Civil  Hist,  of  Conn.,  2.  Even  their  Massa- 
chusetts magistrates  and  ministers  (except  the  minister  at  Watertown) 
removed  with  them.  On  the  extent  of  authority  delegated  to  these  Massa- 
chusetts magistrates  see  Hazard,  I,  822. 

'  Andrews'  River  Toums  of  Conn.,  J.  H.  U.  Studies,  Seventh  Series,  VII, 
Vin,  IX,  78-81 ;  Loomis  and  Calhoun,  3-4 ;  Memorial  Hist,  of  Hartford 
County,  I,  106. 

28 


121]  ConnectimL  29 

Pynchon,  the  Magistrate  from  Agawam  ^  (Springfield)  was 
present  and  raised  the  number  to  seven.  Its  members  were 
commissioned  by  the  General  Court  of  Massachusetts,  and 
their  executive,  judicial  and  legislative  power  was  practically 
supreme.^  Eight  sessions  of  this  court  were  held  before  the 
meeting  of  the  first  General  Court  of  the  colony,  which 
assembled  at  Hartford,  May  1,  1637.  Unlike  the  former 
courts,  it  was  composed  of  the  Magistrates,  Assistants  or 
Commissioners,^  who  had  previously  held  such  meetings,  and 
of  nine  Deputies  here  called  "  Committees,"  three  of  the  latter 
being  from  each  of  the  three  towns.  Thus,  instead  of  slowly 
working  out  a  system  of  representation  by  a  "  series  of  expe- 
dients and  compromises,"  the  principle  of  democracy  early 
asserted  itself  in  the  constitution  of  this  "  binal  assembly."  * 
Here  we  find  the  germs  of  the  Senate  and  House  of  Repre- 
sentatives of  the  future  State  of  Connecticut.  They  became 
permanently  embodied  in  the  political  system  of  the  colony 
by  the  enactment  of  the  "  Fundamental  Orders  "  on  January 
1,  1638-9.^  Under  this  constitution  the  government  was 
organized  upon  a  basis  from  which  only  a  few  permanent 


^  This  was  a  newly  settled  town,  situated  so  near  the  boundary  between 
Massachusetts  and  Connecticut  that  it  was,  for  several  years,  uncertain  to 
which  it  belonged.     See  Palfrey,  I,  235. 

*  For  their  commission  see  Mass.  Col.  Rec,  I,  170. 

'The  title  of  these  "Magistrates"  was  not  fixed  before  the  Constitu- 
tion of  1638-9.  Dr.  Bronson  thinks  they  were  chosen  by  the  newly 
elected  Deputies.  {Early  Oov.  of  Conn,  in  New  Haven  Hist.  Soc.  Papers, 
III,  297). 

*  Johnston's  Genesis  of  a  New  Eng,  State,  14,  In  commenting  upon  this 
assembly  the  author  further  says,  "so  complete  are  the  features  of  State- 
hood, that  we  may  fairly  assign  May  1,  1637,  as  the  proper  birthday  of 
Connecticut."    {Ibid.). 

*  This  instrument,  which  Mr.  Bryce  calls  "  the  oldest  truly  political  Con- 
stitution in  America"  {American  Commonwealth,  ed.  1893,  I,  429,  note), 
provided  for  a  government  similar  in  all  essential  respects  to  that  of 
Massachusetts. 


30  Colonial  Origins  of  New  England  Senates.         [122 

departures  ^  were  made  previous  to  the  adoption  of  the  consti- 
tution of  1818.  The  charter  of  14  Charles  II  was  practically 
a  royal  confirmation  of  this  instrument  and,  instead  of  altering 
the  government  of  the  colony,  put  it  on  a  surer  footing  and 
extended  the  limits  of  the  colonial  jurisdiction.^ 

Throughout  the  colonial  and  early  state  history  of  Con- 
necticut the  Assistants  were  chosen  from  the  colony  as  a  whole 
and  the  composition  of  the  Council'  remained  practically 
unchanged  except  in  the  number  of  its  members.*  During 
this  entire  time  the  Governor  and  Deputy  Governor  retained 
their  positions  as  ex  officio  members  of  this  body  when  acting 
in  every  capacity ;  and  one  of  them  always  presided  when 
present.  Citizenship  in  the  colony  seems  to  have  been  the 
only  qualification  for  membership  in  this  body. 

The  powers  of  the  Council  were,  at  first,  confined  chiefly  to 
the  judicial  and  legislative  departments.  In  the  course  of 
time,  however,  it  entered  more  fully  upon  the  executive 
domain.  The  wording  of  the  Fundamental  Orders  clearly 
indicates  that  its  framers,  who  were  fresh  from  the  conflicts 
that  had  been  so  fiercely  waged  between  the  patricians  and  the 


^  Although,  as  is  well  known,  Andros  failed  to  take  away  the  charter  of 
Connecticut,  he  took  the  government  into  his  hands  in  1687.  But  upon 
his  imprisonment  in  1689  the  old  officers,  after  an  interruption  of  nineteen 
months,  resumed  their  duties  according  to  the  charter.  {Conn.  Col.  Bee., 
Ill,  250;  Palfrey,  II,  384-5;  TurnbuU's  Hist,  of  Conn.,  I,  376-7). 

'  Loomis  and  Calhoun,  104-5.  This  charter  is  almost  an  exact  reproduc- 
tion of  the  Massachusetts  charter  of  1628,  with  an  additional  provision 
recognizing  a  representative  system.  It  led  to  the  absorption  of  the  New 
Haven  colony  and  the  loss  of  all  its  characteristic  institutions.  (Atwater's 
Hist,  of  New  Haven,  520-7).  Hence  the  history  of  this  colony  demands  no 
consideration  in  this  connection. 

'  This  term  is  used  in  anticipation  of  the  subsequent  history  of  this  body, 
since  it  does  not  appear  in  the  records  before  those  who  had  been  called 
"Magistrates"  in  the  Fundamental  Orders  {Conn.  Col.  Bee.,  I,  21)  and 
"Assistants"  in  the  charter  {Ibid.,  II,  4)  came  to  acquire  executive  power. 

*  According  to  the  Fundamental  Orders  it  consisted  of  at  least  six  mem- 
bers while  the  charter  required  a  membership  of  at  leaat  twelve. 


123]  Connedimt.  31 

plebs  of  the  mother  colony,  were  still  disposed  to  regard  the 
Magistrates  with  a  high  degree  of  jealousy  and  suspicion.^ 


Section  II. — The  Exeeutive  Function. 

In  no  part  of  the  Fundamental  Orders  was  this  predilection 
shown  more  clearly  than  in  the  limitations  placed  upon  the 
exercise  of  the  modicum  of  executive  power,  which  it  granted 
this  body.  To  be  sure,  "  the  Gou'nor  and  the  gretest  p'te  of 
the  Magestrats"  were  given  power  to  convene  the  General 
Court  in  either  regular  or  special  sessions ;  ^  but  it  was  also 
provided  that  in  case  they  should  "  neglect  or  refuse  to  call 
the  two  Generall  standing  Courts  or  ether  of  the,  as  also  at 
other  tymes  when  the  occasions  of  the  Comon wealth  "  required, 
"  the  Freemen  ...  or  the  Mayor  p'te  of  them  "  were  given 
power  to  petition  to  them  "  soe  to  do ; "  and  "  if  then  yt  be 
ether  denyed  or  neglected  "  this  power  could  be  exercised  by 
the  freemen  themselves.' 

In  the  course  of  time,  however,  this  jealousy  was  somewhat 
allayed,  and  at  the  General  Court  of  March,  1662-3,  "the 
Assistants  ...  on  the  Riuer"  were  given  power  to  act  in  "  y® 
vacancy  of  the  sitting  of  the  Generale  Court"  "in  all  necessary 
concernments,  both  miletary  and  civile,  according  as  the  p''sent 
exegents  require  and  call  for."  *  Before  that  time  specific 
matters  pertaining  to  the  executive  function  of  the  govern- 
ment '  were  often  referred  to  the  Particular  Court  of  Assistants, 
or  to  individual  Magistrates,®  but  they  had  never  before  been 
authorized  to  act  in  all  "  necessary  concernments."    Although 


^  Dr.  Bronson  {Early  Oov.  of  Conn. — New  Haven  Hist.  Soc.  Papers,  III, 
318)  observes  that  these  people  "  had  witnessed  the  struggle  in  Massachusetts 
between  the  aristocratic  and  republican  members  of  the  government  .  .  . 
were  on  the  popular  side  and  took  effectual  measures  to  circumscribe  patri- 
cian ambition." 

2  Orders  6  and  10.  ^  jjj-^  4(j^„  q^i  ^^^  j^  397 

» Ibid.,  I,  397.  *Ibid.,  71,  255,  277,  etc. 


32  Colonial  Origins  of  New  England  Senates.         [124 

this  order  was  repealed  in  April,  1665,^  the  Governor  and  the 
Assistants  still  continued  to  perform  executive  duties  in  the 
intervals  of  the  General  Court.*  In  July,  1675,  executive 
power  was  granted  to  the  Governor,  Deputy  Governor  and 
Assistants  with  four  other  persons.'  Similar  councils  were 
constituted  from  time  to  time,*  until  May,  1677,  when  the 
membership  of  the  Executive  Council  was,  for  the  first  time, 
restricted  to  the  Governor,  Deputy  Governor  and  the  whole 
body  of  Assistants.*  It  remained  unchanged  in  composition 
until  the  usurpation  of  Andros.  After  that  time  it  varied 
greatly  as  to  its  powers  and  composition,  though  the  right  of 
any  of  the  Assistants  to  membership  in  the  Executive  Council 
was  never  denied.® 

In  the  answers  of  the  General  Court  to  the  queries  of  the 
Lords  of  the  Committee  of  Colonies  given  in  July,  1680,  the 
powers  and  the  composition  of  the  Standing  Council  are  thus 
stated  :  "  As  there  is  any  special  occasion  the  Governor  calls 
his  Assistants,  who  are  his  Council,  to  meet  and  consider  of 
such  matters  as  fall  in  the  interval  of  the  General  Courts,  and 
determine  the  same."  ^ 

In  the  latter  part  of  the  colonial  period  many  powers  which 
had  been  formerly  delegated  to  the  Council  came  to  be  exer- 
cised by  the  Governor  alone.^  Thus  at  a  comparatively  early 
date  there  began  to  appear  indications  of  an  evolutionary 
process  which  ultimately  resulted  in  a  complete  absorption  of 
the  executive  function  by  the  Governor. 

1  JMd.,  94,  188,  316,  etc. 

•  Ibid.,  440.  The  records  contain  the  proceedings  of  as  many  as  three 
such  meetings  between  the  Ist  and  9th  of  July,  1675,  the  date  when  the 
Council  was  revived.     See  Ibid.,  II,  331  et  seq. 

3  Ibid.,  261.  *  Ibid.,  284,  289.  *  Ibid.,  316-7. 

*  Unlike  the  Council  of  the  mother  colony,  that  of  Connecticut  was  strictly 
subordinate  to  the  General  Assembly  and  was  dependent  upon  that  body  for 
all  its  powers  and  even  for  its  very  existence. 

'  Oonn.  Col.  Bee.,  Ill,  294 ;  Chalmers'  Anncds,  307. 

8Cf.  Conn.  Col.  Bee.,  VIII,  87,  376,  with  X,  350,  424,  461, 485,  550 ;  VIII, 
326,  with  X,  348,  XI,  99,  126,  234,  354,  486,  XIV,  430 ;  VII,  77-8,  VIII, 
440,  461,  with  X,  pp.  483-4,  etc. 


125]  Connecticut.  33 


Section  III. — The  Judicial  Function. 

At  the  beginning  of  the  government  of  Connecticut,  the 
judicial  duties  and  powers  of  the  Counsellors  extended  to  all 
the  tribunals  that  existed  in  the  colony  previous  to  the  granting 
of  the  charter.  As  in  Massachusetts,  they  were  not  limited  to 
the  general  judicial  authority  which  they  performed  as  mem- 
bers of  the  General  Court.^  They  also  exercised  judicial 
power  in  the  Particular  Court,^  which  from  1638  to  1665 
constituted  the  highest  strictly  judicial  tribunal  in  the  colony.^ 

Upon  the  reorganization  of  the  government  of  the  colony 
under  the  charter,  several  important  changes  were  made  in  the 
judicial  system  in  order  to  meet  the  needs  of  an  increased 
population  and  an  extended  territory. 

^  In  both  colonies  the  legislative  body  received  not  only  the  name  but  the 
authority  of  a  judicial  tribunal.  This  power  cannot  be  said  to  have  been 
completely  surrendered  by  this  body  until  the  formation  of  the  constitution 
of  1818.  in  1726  an  appeal  to  the  King  in  Council  was  refused  John  Win- 
throp  because  he  had  not  previously  referred  his  case  to  the  Assembly 
as  the  Supreme  Court  of  the  colony.  {Conn.  Col.  Eec.,  VII,  20).  From 
time  to  time,  however,  appeals  to  the  General  Assembly  became  so  numerous 
that  various  expedients  were  resorted  to  in  order  to  restrict  them.  See 
Loomis  and  Calhoun,  106-7,  132. 

*Conn,  Col.  Bee.,  i,  21.  It  was  composed  at  first  of  the  Governor  or 
Deputy  Governor  and  a  majority  of  Magistrates,  but  after  May,  1647,  the 
Governor,  or  Deputy  Governor  and  two  Magistrates  were  empowered  to  hold 
its  sessions.  It  met  four  times  a  year  and  tried  all  cases  of  appeal  from  the 
lower  courts  and  all  other  causes  exceeding  forty  shillings.  At  first  all 
causes  were  tried  by  a  jury  which  seems  to  have  been  in  attendance  from 
the  first  institution  of  this  court.  (Trumbull,  I,  125).  After  February, 
1644,  causes  under  forty  shillings  were  tried  by  the  Magistrates  without  a 
jury  {Conn.  Col.  Mec.,  I,  118,  535),  and  in  cases  when  juries  were  employed, 
the  Magistrates  were  granted  great  discretionary  power  in  aflixing  penalties 
{Ibid.,  138,  324),  and  they  were  even  allowed  to  set  aside  the  verdict  of  a 
jury  when,  according  to  their  judgment,  it  was  unjust  {Conn.  Col.  Bee.,  I, 
117,  118) ;  and  to  decide  all  cases  whereon  the  jury  disagreed  {Ibid.,  85). 
After  March,  1662-3,  persons  convicted  before  this  Court  "for  a  misde- 
meanor" were  allowed  an  appeal  to  the  General  Court  {Ibid.,  395).  See 
also  Loomis  and  Calhoun,  126-7. 

^  Memmial  Hist,  of  Hartford  ComUy,  I,  109. 

3 


34  Colonial  Origins  of  New  England  Senates.         [126 

The  General  Court,  or  General  Assembly  as  it  was  then 
called,  still  exercised  judicial  power  and,  in  fact,  continued  to 
do  so,  to  a  greater  or  less  degree,  until  the  formation  of  the 
constitution  of  1818. 

The  powers  which  had  been  exercised  by  the  Particular 
Court  were  divided  between  two  newly  created  tribunals, — the 
County  Courts  and  the  Court  of  Assistants.  From  1666  to 
1698  the  County  Courts  ^  consisted  of  one  Assistant,  or  "  as  we 
would  now  say  Senator,"  ^  and  at  least  two  Commissioners  or  of 
any  three  Assistants.'  In  1698,  however,  the  Assistants  ceased 
to  be  ex  offixdo  members  of  these  tribunals,* — this  being  the 
first  instance  of  a  diminution  in  the  judicial  powers  of  this 
body  during  its  process  of  evolution  into  a  Senate. 

In  October,  1665,  the  Court  of  Assistants  succeeded  the 
Particular  Court  as  the  highest  strictly  judicial  body  in  the 
colony."  The  membership  of  this  new  court  was  also  confined 
to  the  Governor,  or  Deputy  Governor  and  Magistrates,  who  at 
this  time  came  to  be  called  Assistants.^    It  existed  until  1711  ^ 

^  The  first  County  Court  was  established  in  May,  1665,  for  the  New  Haven 
colony,  which  had  just  lost  its  General  Court.  (Trumbull,  I,  276-7).  A 
similar  court  was  also  established  at  New  London  at  the  same  date.  {Ibid.). 
In  October  of  the  same  year  a  similar  court  was  established  for  Hartford 
{Conn.  Col.  Rec.,  II,  29),  and  the  next  year  they  were  established  for  all  the 
counties  of  the  colony.  {Ibid.,  35).  They  were  composed  at  first  of  two 
Assistants  and  three  Justices  of  the  Quorum.     (Trumbull,  I,  276-7). 

'Memorial  Hist,  of  Hartford  County,  I,  110.  ^  Conn.  Col.  Rec,  II,  35. 

^  After  1698  they  were  composed  of  one  judge  and  from  two  to  five  Jus- 
tices of  the  Peace  and  Quorum.  The  jurisdiction  of  these  courts,  while 
composed  of  Assistants,  extended  to  all  cases,  both  civil  and  criminal,  except 
those  involving  life,  limb,  or  banishment.  Causes  involving  more  than 
twenty  shillings  were  tried  by  a  jury. 

»  Conn.  Col.  Rec,  II,  28-9. 

^Ibid.;  Memorial  Hist,  of  Hartford  County,  I,  113;  Loomis  and  Calhoun, 
129.  It  was  empowered  to  meet  twice  a  year,  to  hear  and  determine  appeals 
from  the  lower  courts  and  to  try  capital  oflfences  and  crimes  respecting  life, 
limb,  or  banishment.  Appeals  were  tried  by  a  jury  "  if  the  nature  of  the 
case  required."  {Conn.  Col.  Rec,  II,  29 ;  III,  294 ;  Chalmers,  307).  It  was 
also  granted  jurisdiction  in  cases  of  divorce  and  the  powers  of  a  Court  of 
Admiralty.     (Loomis  and  Calhoun,  129). 

'  Owing  to  a  typographical  error,  Loomis  and  Calhoun  (p.  131)  give  1811 
as  the  date  of  this  change. 


127]  ConneGtieut.  36 

when  it  was  succeeded  by  the  Superior  Court  of  the  colony, 
both  of  which  had  practically  the  same  composition  and  power. 
In  1784  an  act  was  passed  by  the  General  Assembly  declaring 
that  the  office  of  judge  of  this  court  was  incompatible  with 
membership  in  the  Assembly,  or  in  the  Congress  of  the  United 
States.^  This  seems  to  have  been  the  second  instance  in  which 
the  judicial  powers  of  the  Senate  were  limited  in  the  process 
of  its  evolution  into  a  strictly  legislative  body. 

In  1784  a  Superior  Court  of  Errors  was  established.  It 
consisted  of  the  Governor,  Lieutenant  Governor  ^  and  Assist- 
ants.^ The  defects  in  the  composition  of  this  tribunal  soon 
became  apparent, — since  its  membership  was  determined  with 
reference  to  the  position  the  Assistants  were  to  hold  in  the 
General  Assembly,  which  was  the  larger  and  more  important 
body.^  The  Assistants  were  chosen  because  of  their  qualifi- 
cations as  legislators,  rather  than  judges,  hence  the  judicial 
system  felt  the  evil  effects  of  this  law.  It  was  therefore 
repealed  in  1806,  and  from  that  date  this  tribunal  was  com- 
posed of  the  several  judges  of  the  Superior  Court  instead 
of  the  Senators  serving  in  an  ex  officio  capacity.*  This  was 
the  third  and  last  step  in  limiting  the  judicial  powers  of 
the  Senate  previous  to  the  adoption  of  the  Constitution  of 
1818. 


'  Loomis  and  Calhoun,  133. 

'Loomis  and  Calhoun  (p.  133)  say  that  the  Governor  became  a  member 
of  this  tribunal  in  1793,  while  Memorial  Hist,  of  Hartford  County  (I,  p.  113) 
gives  this  date  as  the  time  when  the  Lieutenant  Governor  was  admitted 
to  it. 

^  This  court  was  held  at  first  annually,  alternating  between  Hartford  and 
New  Haven.  In  1801  it  was  enacted  that  this  body  should  consist  of  six 
members  and  was  to  hold  two  sessions  in  each  county  annually,  one  in 
summer  and  the  other  in  winter.  ( Loomis  and  Calhoun,  pp.  133-4).  Its 
jurisdiction  extended  to  all  cases  which  had  previously  gone  before  the 
General  Assembly  by  writ  of  error.  Civil  actions  had  been  excluded  from 
the  General  Assembly  since  May,  1697.     {Oonn.  Col.  Rec,  IV,  200). 

■•  Loomis  and  Calhoun,  133-4. 

^Ibid.;  Pease  and  Niks'  Gazetteer  of  Conn,  and  B.  J.,  ed.  1819,  18. 


36  Colonial  Origins  of  New  England  Senates.         [128 


Section  IV. — The  Legislative  Function. 

Legislative  authority  was  vested  solely  iu  the  General  Court 
or  Assembly/  which  was  composed  of  two  branches, — the 
upper  consisting  of  the  Magistrates  or  Assistants  ^  elected  by 
the  freemen  at  large  and  the  lower  of  Deputies,  or  Repre- 
sentatives chosen  by  the  several  towns.  They  occupied  the 
same  chamber  and  were  presided  over  by  the  Governor,  or 
Deputy  Governor,  or  iu  the  absence  of  both  by  a  Moderator.' 
Two  sessions  of  this  court  were  held  annually.  The  fall  term 
was  for  the  "  making  of  laws,"  while  the  spring  term  was  for 
the  election  of  officers,  after  which  it  might  "proceed  in  any 
public  service  as  at  other  courts."  *  Each  session,  however, 
embraced  many  meetings,  which  were  adjourned  from  time  to 
time  and  thus  extended  over  a  period  of  several  months.  The 
legislative  power  of  this  court  extended  over  the  whole  colony 
and  was  practically  unrestricted.'' 

It  was  found  necessary  to  make  only  a  few  changes  in  the 
privileges  of  the  two  branches  of  the  General  Court  and  in 
their  relations  to  each  other.  For  the  first  six  years  after  the 
organization  of  the  government,  the  two  branches  sat  together 
and  voted  as  one  body.  Of  course,  this  gave  a  great  advantage 
to  the  larger  branch.  After  the  lapse  of  six  years,  however, 
the  prejudice  against  the  Magistrates,  as  shown  in  the  Funda- 
mental Orders,  had  abated  to  such  an  extent  that  the  Deputies 
were  willing  to  make  a  heroic  sacrifice  of  the  advantage  they 


»  Qmn.  Col.  Bee.,  Ill,  295. 

*  Dr.  Bronson  {Early  Oovemment  of  Conn. — New  Haven  Hist.  Soc.  Papers, 
III,  317 )  judging  by  the  wording  of  the  Fundamental  Orders  and  by  the  state 
of  mind  of  its  framers,  thinks  that  the  granting  of  legislative  power  to  the 
Magistrates  was  "  an  after-thought"  and  that  ''it  is  not  in  harmony  with 
the  other  parts  of  the  Constitution." 

3  Conn.  Col.  Bee.,  II,  24-5.  *  Ilnd.,  22. 

*  Loomis  and  Calhoun,  103.  The  charter  forbade  the  enacting  of  laws 
"  contrary  to  the  laws  and  statutes  of  the  realm  of  England,"  but  no  pro- 
vision was  made  for  its  enforcement.     (Palfrey,  II,  41). 


129]  Cbnnedimt.  37 

held  over  the  minority.  On  February  5,  1644-5,  an  act  was 
passed  granting  to  each  body  "a  negative  voice"  upon  the 
actions  of  the  other.^  This  "  important  concession  on  the  part 
of  the  popular  majority"  was  the  first  instance  in  which 
separate  rights  were  accorded  to  each  body.  The  passage  of 
this  act  was  probably  due  to  the  combined  influence  of  the 
mother  colony,  which  had  just  introduced  the  bicameral  sys- 
tem,^ and  the  "  increasing  weakness  of  the  aristocratic  party 
in  England."^  In  1724  it  became  necessary  to  make  an 
exception  to  it  in  the  election  of  Governor.* 

The  second  step  in  the  evolution  of  the  Council  as  a  legis- 
lative body  was  taken  in  October,  1698,  when  it  was  enacted 
that  the  General  Court,  or  Assembly  which  had  hitherto  con- 
stituted a  unicameral  body  should  be  divided  into  two  separate 
branches,  the  first  of  which  was  to  consist  of  the  Governor, 
or  Deputy  Governor  and  Assistants,  and  was  to  be  "  known 
by  the  name  of  the  Upper  House."  ^  The  Governor  was  not 
given  a  veto  power,  but,  as  President  of  the  Council,  was 
allowed  a  casting  vote  in  case  the  vote  of  that  body  should  be 
equally  divided.^  Any  bill  could  originate  in  either  house  but 
was  not  allowed  to  have  the  force  of  law  without  the  concur- 
rence of  the  other.  This  act  was  put  into  execution  at  the  next 
meeting  of  the  Assembly,  held  in  May,  1699.'  No  subsequent 
change  was  made  in  the  rights  and  functions  of  the  Upper 
House  nor  in  its  relations  to  the  popular  branch  during  the 
colonial  and  early  state  history  of  Connecticut.  This  colony 
did  not  follow  the  example  of  most  of  the  other  colonies  and 


*  Conn.  Col.  Rec,  I,  119.  *See  supra.  ^Bronson,  321. 

*  Conn.  Col.  Bee,  VI,  415,  note,  483-4.  Other  officers  were  still  chosen  by 
the  two  bodies  sitting  apart.     (Ibid.,  377). 

^  Ibid  lY,  267,  282;  Trumbull,  I,  399;  Palfrey,  HI,  208;  Loomis  and 
Calhoun,  106. 

^  Douglass,  Summary,  II,  168. 

'  Conn.  Col.  Bee,  TV,  282.  On  this  subject  see  also  Prof.  T.  F.  Moran's 
Bise  and  Development  of  the  Bicameral  System  in  America,  J.  H.  U,  Studies, 
Thirteenth  Series,  V,  16-22. 


38  Colonial  Origins  of  New  England  Senates.         [130 

adopt  a  new  constitution  upon  emerging  into  statehood,  but 
cjontinued  its  government  after  the  ancient  form,  a  statute 
being  enacted  the  session  after  the  memorable  4th  of  July, 
1776,  which  provided  that  the  government  should  continue  to 
be  organized  and  administered  according  to  the  provisions  of 
the  charter.* 

Section  V. — The  Constitution  of  1818. 

The  final  step  in  the  process  of  evolution  was  taken  upon 
the  formation  of  the  first  state  constitution  in  1818.  It 
provided  for  the  definitive  separation  of  the  three  functions 
of  government.^  The  executive  and  judicial  powers  of  the 
Council  were  taken  away  and  the  body  was  erected  into  a  true 
Senate.^  Its  membership  remained  the  same  in  number*  and 
was  still  chosen  from  the  State  at  large.®  There  was,  however, 
a  change  as  to  its  composition.     Owing  to  the  separation  of 


'  Pease  and  Niles'  Gazetteer  of  Oonn.  and  R.  I.,  18.  The  changes  occasioned 
by  the  transition  from  colony  to  state  were  very  slight.  In  1775  the  regnal 
year  disappeared  from  the  head  of  the  records.  ( Conn.  Col.  Rec,  XV,  185, 
note).  In  June,  1776,  acts  were  purported  to  be  passed  by  the  "General 
Court  or  Assembly  of  the  English  Colony  of  Connecticut  in  New  England," 
while  in  October  of  the  same  year  they  were  said  to  be  by  the  "  State  of 
Connecticut  in  New  England."    {Memorial  Hist,  of  Hartford  County,  I,  107). 

Instead  of  forming  a  new  constitution  the  inhabitants  of  Connecticut 
contented  themselves  with  their  old  charter  of  1662,  to  which  they  merely 
prefixed  a  Bill  of  Eights.  This  Bill  of  Rights  (Paragraph  I)  begins  as 
follows :  "Beit  enacted  and  declared  by  the  Governor,  and  Council,  and  House 
of  Representatives,  in  General  Court  assembled.  That  the  ancient  Form  of  Civil 
Government,  contained  in  the  Charter  from  Charles  the  Second,  King  of 
England,  and  adopted  by  the  People  of  this  State,  shall  be  and  remain  the 
Civil  Constitution  of  this  State,  under  the  sole  authority  of  the  People 
thereof,  independent  of  any  King  or  Prince  whatever." 

*  Articles  II;  X,  Sec.  4.  'Article  II,  Sec.  1. 

*  Cf.  Article  III,  Sec.  4,  with  Conn.  Col.  Rec,  II,  5. 

*  Article  III,  Sees.  5-6.  A  change  was  made  in  this  feature  of  the  con- 
stitution by  an  amendment  ratified  in  November,  1828,  which  required  the 
choice  of  Senators  according  to  districts.  (Amendments  to  the  Constitution 
of  1818,  Art.  II). 


131]  Connecticut.  39 

governmental  functions,  the  Governor,  who  now  became  the 
chief  executive  of  the  State,^  no  longer  retained  his  seat  as  an 
ex  officio  member  of  the  Senate,^  and  the  Lieutenant  Governor 
succeeded  to  the  position  of  president  of  that  body,  a  duty 
which  he  had  always  performed  in  the  absence  of  the  Gover- 
nor.^ The  casting  vote  which  had  been  accorded  the  presiding 
officer  in  the  Council  was  still  retained,*  and  the  veto  power 
of  the  Governor  was  introduced  for  the  first  time  in  the  history 
of  the  State.® 


1  Article  IV,  Sec.  1. 

•  The  only  qualification  for  membersliip  in  this  body  seems  to  have  been 
citizenship  within  the  State. 

"  Article  IV,  Sec.  13. 

*  Cf.  Article  IV,  Sec.  13,  with  Conn.  Col.  Bee.,  I,  25. 
^ArticlelV,  Sec.  12. 


CHAPTEE  III. 

New  Hampshire. 

Section  I. — Governmental  Beginnings. 

The  inhabitants  of  the  little  settlements  along  the  several 
branches  of  the  Piscataqua  learned  their  first  political  lessons 
from  Massachusetts,  under  whose  jurisdiction  they  spent  thirty- 
eight  years  at  the  very  beginning  of  their  governmental  career.^ 
The  laws,  customs  and  institutions  of  Massachusetts  were 
quickly  adopted  in  New  Hampshire,  and  the  two  colonies  soon 
became  one  in  sympathy  and  in  governmental  policy. 

On  September  18,  1679,  Charles  II  issued  a  commission* 
which  separated  the  two  colonies  and  erected,  what  Douglass 
calls  the  "  insignificant  colony  "  ^  of  New  Hampshire,  into  a 
distinct  province  with  a  separate  President  and  Council.  This 
change  went  into  effect  January  1,  1680,  at  which  date  the 
history  of  the  Council  of  New  Hampshire  properly  begins.* 


•"By  virtue  of  an  instrument  signed  by  five  inhabitants  of  these  settlements 
on  April  14,  1641,  the  people  of  New  Hampshire  came  to  enjoy  the  same 
liberties  and  administration  of  justice  as  those  of  Massachusetts.  (New 
Hampshire  Provincial  Papers,  I,  156-9 ;  Farmer's  Belknap's  Hist,  of  N.  H., 
30 ;  Hubbard,  372).  The  government  of  this  section  had  previously  con- 
sisted of  four  distinct  voluntary  associations,  which  were  liable  to  be  further 
subdivided  over  the  disagreements  that  are  inevitable  in  political  affairs. 

*  Prov.  Papers,  I,  373 ;  Poore's  Charters  and  Constitutions,  H,  1275. 
'  Summary  of  America,  II,  34. 

*  During  the  union  with  Massachusetts,  New  Hampshire  was  entitled  to 
only  two  Deputies,  no  mention  being  made  of  any  representation  in  the 
Council.  See  Prov.  Papers,  I,  159;  Farmer's  Belknap,  31;  Savage's  Win- 
throp,  II,  92. 

40 


133]  New  Hampshire.  41 

Several  changes  were  made  in  the  government  of  the  colony 
previous  to  the  outbreak  of  the  Revolution/  yet  the  history 
of  the  Council,  with  one  slight  exception,^  extends  throughout 
this  entire  period  of  ninety-five  years. 

Its  members  were  never  chosen  by  the  people  in  their  annual 
elections,  as  was  the  case  in  the  neighboring  colonies,  but  were 
appointed  by  the  Crown.^  They  cannot,  therefore,  be  said 
to  have  constituted  an  independent  body  at  any  time  in  the 
colonial  period.  They  were  always  selected  from  the  colony 
as  a  whole,  witliout  regard  to  the  interests  of  the  different  sec- 
tions,^ and  could  be  dismissed  by  the  President  at  his  discretion.^ 

During  the  entire  colonial  period  the  powers  of  this  body 
were  threefold — executive,  j  udicial  and  legislative.  The  extent 
of  its  effective  authority,  however,  was  greatly  modified  by 
such  arbitrary  rulers  as  Cranfield,  Barefoot  and  Andros. 

Section  II. — The  Executive  Function. 

The  Council  had  no  executive  powers  independent  of  the 
Governor,  or  in  his  absence  of  the  Lieutenant  Governor,  both 

^  It  remained  a  separate  royal  province  from  1680  to  1686,  when  it  became 
a  province  of  New  England.  Upon  the  overthrow  of  Andros  in  1690  it 
again  united  with  Massachusetts.  This  union  lasted  until  1692,  when  it 
again  became  a  separate  royal  province.  In  1699  another  change  was  made 
by  which  it  was  partially  united  with  Massachusetts,  each  colony  having  the 
same  Governor,  but  different  Lieutenant  Governors,  Councils  and  Assembly 
of  Representatives.  In  1741  it  became  a  separate  royal  province  for  the 
third  time  and  remained  as  such  until  1775. 

*The  second  union  with  Massachusetts  (1690-92)  was  made  on  the  same 
basis  as  the  first.  Hence  New  Hampshire  had  no  representation  in  the 
Council.    See  supra.     Cf.  Prov.  Papers,  I,  156-9,  with  Ibid.,  II,  35-6. 

*  In  Cuffs'  Commission,  six  out  of  the  ten  Counsellors  were  appointed  by 
the  King.  {N.  H.  Hist.  Coll.,  Ylll,  2;  Prm.  Papers,  I,  375;  Poore,  II, 
1275).  In  subsequent  commissions  the  King  retained  the  power  to  appoint 
all  Counsellors  except  when  the  number  fell  below  seven  at  any  one  time. 
{Prov.  Papers,  I,  435;  II,  58,  306,  367-8,  and  VI,  909-10). 

*  This  finally  became  a  source  of  complaint  on  the  part  of  the  repre- 
sentatives. 

*  In  Cranfield's  Commission  those  who  had  been  thus  dismissed  were  ineli- 
gible to  a  seat  in  the  Assembly.     {Prov.  Papers,  I,  435). 


42  Colonial  Origins  of  New  England  Senates.         [134 

of  whom  were  ex  ojido  members  of  it  when  acting  in  such  a 
capacity.^  Its  executive  sessions  were  held  so  often  at  Ports- 
mouth,^ at  or  near  which  a  majority  generally  resided,  that  it 
finally  came  to  be  the  only  recognized  place  of  meeting.'  The 
Governor  and  Council  could  convene  the  legislative  assembly ;  * 
advise  as  to  the  issuing  of  warrants  for  the  disposal  of  public 
monies;**  build  and  fortify,  or  demolish  forts,  castles,  cities,^ 
etc. ;  supervise  the  trade  and  commerce  of  the  colony,  order 
fairs,  markets,  ports,  harbors,  etc. ;  and  appoint  custom-house 
and  warehouse  officials.^  They  were  also  charged  with  the 
granting  of  lands  and  tenures,*  and  the  establishment  of  courts 
of  justice.®  The  last  named  power,  though  granted  by  the 
various  royal  commissions,  seems  to  have  been  shared  from  an 
early  date  by  the  popular  branch  of  the  legislature  regardless 
of  the  united  opposition  of  the  Governors  and  the  Councils. 
The  point  was  not  finally  conceded  until  1771,  when  the  Crown 
gave  the  Representatives  a  legal  basis  for  such  action.^" 


1  Frov.  Papers,  I,  370-6,  440-1 ;  II,  63,  etc. 

*  Ibid.,  II.  ^  Ibid.,  YU,  204. 
*Ibid.,  I,  379,  436;  11,  58,  306,  367  ;  VI,  910;  VII,  124. 

•  Ibid.,  I,  440;  II,  65,  310,  373;  VI,  912;  VII,  124. 
«/&id.,  I,  439;  II,  60,  308,  371 ;  VI,  911-2;  VII,  124. 
Ubid.,  I,  440;  II,  61,  67,  311,  373;  VI,  913;  VII,  124. 
'Ibid.,  II,  310,  373 ;  VI,  913 ;  VII,  124. 

^Prov.  Papers,  II,  59,  307,  369 ;  VI,  911 ;  VII,  124.  This  power  was  not 
granted  in  Cutts*  Commission,  since  the  Governor  and  Council  themselves 
constituted  the  Court. 

^°  The  first  contest  over  the  exercise  of  this  power  arose  in  Cranfield's 
administration.  The  wording  of  his  commission  was  very  vague  on  this 
point.  It  reads :  "  We  [the  King]  do  hereby  give  and  grant  unto  you 
[Cranfield]  full  power  and  authority  to  erect,  constitute  and  establish  such 
and  so  many  courts  of  judicature  and  public  justice  ....  as  you  and  they 
shall  think  fit  and  necessary."  {Prov.  Papers,  I,  437.)  In  the  copy  of  this 
commission  which  was  delivered  to  the  Assembly  the  words,  "and  they" 
were  omitted  by  order  of  the  Governor  who  maintained  that  they  were 
"  put  in  by  mistake."  The  Assembly,  of  course,  thought  that  it  referred 
to  them  {Ibid.,  517)  and  demanded  a  voice  in  this  matter.  In  the  adminis- 
tration of  Cranfield  and  his  immediate  successors,  the  power  of  the  Assembly 
was  reduced  to  the  minimum,  but  after  the  iniquitous  rule  of  Andros,  a 


135]  New  Hampshire.  43 


Section  III. — The  Judicial  Function. 

Upon  the  organization  of  the  judicial  system  of  New  Hamp- 
shire after  its  separation  from  Massachusetts  in  1680,  the 
judicial  business  of  the  colony  was  placed  for  the  most  part 
into  the  hands  of  the  Counsellors. 


voice  in  the  establishment  of  courts  of  judicature  was  accorded  the  popular 
branch,  notwithstanding  the  commissions,  which  bestowed  this  entire  power 
upon  the  Governor  and  Council.  Such  authority  was  not  exercised,  how- 
ever, without  encountering  the  opposition  of  the  Council,  whose  rights 
were  thus  infringed  upon. 

In  1767  the  House  passed  two  different  bills  for  the  establishment  of 
courts  in  the  various  counties  to  be  created  by  the  legislature.  {Prov.  Papers, 
VII,  135,  140).  Both  bills  were  rejected  by  the  Council  on  the  ground  that 
such  an  act  would  be  an  infringement  upon  the  prerogative  of  the  Crown, 
who  had  vested  this  power  in  the  Governor  with  the  advice  and  consent 
of  his  Council.  {Ibid.,  144).  The  House  replied  that  the  paragraph  cited 
from  the  Governor's  commission  had  been  inserted  in  the  first  commission 
for  erecting  a  government  in  the  province  and  "  from  the  exigency  of  afiairs 
was  then  absolutely  necessary  till  a  Legal  Establishment  of  Courts  of  Justice 
should  take  place;  and  though  perhaps  the  same  paragraph"  had  been 
inserted  in  all  subsequent  commissions,  such  a  power  had  never  been  exer- 
cised by  any  Governor  of  the  province  "  since  the  laws  now  in  force  were 
passed  for  holding  said  Courts  in  the  town  of  Portsmouth  and  regulating 
their  proceedings.  In  the  year  1730  three  of  the  Inferior  Courts  were 
removed  from  Portsmouth,  one  to  Exeter,  one  to  Dover,  one  to  Hampton, 
and  but  one  held  at  Portsmouth,  but  this  was  by  an  act  passed  for  that  pur- 
pose. .  .  .  Since  the  year  1730  four  or  five  Acts  of  Assembly  have  been 
passed  for  altering  the  times  of  the  sitting  of  Courts  in  this  Province,  and 
we  think  it  to  be  plain  that  the  words  Erect,  Constitute  and  Establish  have 
here  an  original  signification  of  fixing  those  courts  in  the  first  instance." 
{Ibid.,  154-5).  The  Council  still  non-concurred.  {Ibid.,  156,  162).  The 
House  appealed  to  the  King  {Ibid.,  184),  who  consented  that  the  act  should 
be  passed  provided  it  "  contained  a  suspended  clause  that  should  not  take 
eflfect  till  his  Majesty's  Pleasure  should  be  known."  {Ibid.,  202).  Thus 
the  point  at  issue  was  settled.  The  act  which  recognized  the  rights  of  the 
House  to  a  voice  in  the  establishment  of  courts  of  justice  was  passed  in 
April,  1767  {Ibid.,  229),  and  received  the  royal  approval  in  1771.  {Ibid., 
274,  276). 


44  Colonial  Origins  of  New  England  Senates.         [136 

They  not  only  exercised  judicial  authority  in  the  General 
Court ^  as  in  Massachusetts,  but  were  also  constituted  by  the 
commission  of  President  Cutts,  a  separate  court  of  appeals 
for  the  whole  colony.  The  exercise  of  this  latter  power  en- 
countered the  constantly  increasing  opposition  of  the  colonists 
from  time  to  time.  It  was  nevertheless  renewed  by  subse- 
quent commissions  and  instructions,  and  was  thus  continued 
throughout  the  colonial  period.^ 

Three  inferior  courts  were  appointed  for  Dover,  Hampton 
and  Portsmouth.  These  were  held  "by  y'  Presid'  and  Counc", 
or  any  6  of  y'  Counc"  whereof  y*  Presid*  or  his  Deputy  " 
were  one  "  together  w***  a  Jury  of  12  honest  men  ...  for  such 
as  desire  to  be  tried  by  a  Jury."  ^  There  was  no  limit  to  the 
jurisdiction  of  these  courts.  Appeals  could  be  taken  to  the 
King  in  Council  on  all  civil  cases  involving  over  fifty  pounds  * 
and  in  "criminall  cases,  where  y*  punishm*  to  be  inflicted" 
extended  "  to  loss  of  life  or  limb,"  except  in  "y*  case  of  will- 
full  murder."  The  individual  members  of  the  Council  were 
also  given  authority  to  hear  and  determine  minor  offenses.' 

^Farmer's  Belknap,  222;  Prov.  Papers,  I,  395.  As  in  the  other  colonies, 
the  General  Assembly  was  usually  considered  the  supreme  tribunal  for  the 
trial  of  all  cases  of  appeal  from  inferior  courts.  {Prov.  Papers,  VII,  395, 
N.  H.  Hist.  Coll.,  VIII,  22.)  In  Gov.  Allen's  instructions,  however,  the 
exercise  of  such  power  was  not  allowed,  since  appeals  from  the  Governor 
and  Council  were  expressly  forbidden  {Prov.  Papers,  II,  68). 

'N.  H.  Hist.  CoU.,  VIII,  4.  'Prov.  Papers,  I,  395. 

*Prov.  Papers,  I,  377;  N.  H.  Hist.  CoU.,  VIII,  4. 

^Prov.  Papers,  I,  387,  390,  392 ;  N.  H.  Hixt.  CoU.,  VIII,  14,  17, 19.  Under 
the  administration  of  Gov.  Dudley  New  Hampshire  became  a  county  of  the 
Province  of  New  England  and  its  courts  were  composed  of  Justices  of  the 
Peace  and  such  Counsellors  as  might  be  present,  one  at  least  being  required 
to  form  such  a  tribunal  {Prm.  Papers,  I,  594).  The  President  and  Council 
of  New  England,  part  of  which  was  chosen  from  New  Hampshire,  consti- 
tuted the  Superior  Courts  of  Grand  Assize  and  General  Goal  Delivery  which 
held  annual  sessions  in  Boston  {Ibid.,  595). 

Andros  and  his  Council  constituted  a  Court  of  Sessions  and  a  Superior 
Court  of  Judicature  {Ibid.,  II,  16  and  17  note;  Col.  Ree.  of  Conn.,  Ill, 
1678-1689),  whose  jurisdiction  extended  over  New  Hampshire. 

The  Council  minutes  show  that  in  the  administration  of  John  Usher  "  all 
of  y*  Council "  had  "  power  as  Justice  of  Peace  in  y«  whole  Province." 


137]  New  Hampshire.  45 

This  system  was  in  force  until  1699  when  the  judiciary  of 
the  Colony  was  reorganized.  Before  that  date,  however,  the 
courts  varied  greatly  in  character,  composition  and  authority. 
At  times,  law  and  justice  became  "  synonymous  with  a  dicta- 
tor's decrees  "  and  Counsellors,  Judges  and  Assemblies  were 
dismissed  with  or  without  cause,  as  the  Governor's  prejudice 
determined.^ 

An  act  of  1699  shows  a  marked  tendency  to  reduce  the 
judicial  duties  of  the  Council  as  a  body,  since  by  it  the  Gov- 
ernor and  Council  were  made  a  court  of  appeal  only  for  civil 
cases  involving  over  one  hundred  pounds.^  In  less  than  two 
years  afterwards,  the  colonists  made  an  emphatic  assertion  of 
their  opposition  to  this  tribunal.  Several  complaints  were 
sent  to  the  Queen  to  the  effect  that  the  Governor  and  Council 
received  appeals  and  decided  cases  without  taking  an  oath  to 
do  justice.^  An  oath  was  then  prescribed  and  taken,*  but  the 
people  were  still  unwilling  that  the  Council  should  exercise 
judicial  as  well  as  executive  and  legislative  power.'  On  Jan- 
uary 3,  1727-8,  they  passed  a  vote  "prohibiting  the  Sup' 
Court  of  Judicature"  from  granting  "appeals  to  the  Gov'  & 
Council."®  The  Council  non-concurred  and  cited  the  royal 
instructions  as  the  source  of  its  judicial  authority.^  Lieutenant 
Governor  Wentworth  put  an  end  to  the  controversy  by  dis- 
solving the  Assembly.*    But  this  did  not  silence  the  opposition 

1  Sanborn's  Hkt.  of  N.  H.,  81. 

^Prov.  Papers,  III,  86  and  220.  Membership  in  the  Council  did  not,  how- 
ever, disqualify  one  from  exercising  other  judicial  powers  besides  those  per- 
taining to  the  Council  as  a  whole. 

3  Farmer's  Belknap,  222.  *Pi-ov.  Papers,  II,  342. 

*  This  opposition  was  occasioned  partly  because  the  judges  who  decided 
cases  in  the  inferior  courts  were  members  of  the  Council ;  "  partly  because 
no  jury  was  admitted  in  this  court  of  appeal;  and  partly  because  no  such 
institution  was  known  in  the  neighboring  province  of  Massachusetts." 
(Farmer's  Belknap,  222). 

*JVoD.  Papers,  IV,  475. 

^It  even  characterized  this  act  as  a  "scandalous  lible"  {Prov.  Papers, 
III,  480). 

Ubid.,  484. 


46  Colonial  Origins  of  New  England  Senates,         [138 

of  the  people,  and  the  existence  of  this  tribunal  was  a  standing 
grievance  throughout  the  rest  of  the  colonial  era.* 


Section  IV. — The  Legislative  Function. 

All  the  royal  commissions  issued  to  the  Governor  of  New 
Hampshire  vested  the  legislative  power  in  the  General  Assem- 
bly of  Representatives.^  All  the  Governors  except  Cutts  were 
given  a  veto  over  all  the  acts  of  the  legislature.^  All  enact- 
ments passed  by  both  houses  and  approved  by  the  Governor 
were  transmitted  to  the  Privy  Council  in  England  and 
remained  in  force  until  disallowed  by  that  authority.^ 

The  first  session  of  the  General  Assembly  of  New  Hamp- 
shire met  at  Portsmouth  on  March  16,  1679-80.  Profit- 
ing by  the  unpleasant  experiences  of  Massachusetts,  three  years 
after  they  had  first  passed  under  her  jurisdiction,  the  two 
branches  of  the  Assembly  sat  apart  ^  and  it  was  enacted  that 
"  no  Act,  Imposition,  Law  or  Ordinance  be  made  or  imposed 
upon  "  the  province  "  but  such  as  shall  be  made  by  the  said 
Assembly  and  approved  by  the  Presid'  and  Councill  from 
time  to  time."®  They  then  proceeded  to  re-enact  the  laws  of 
Massachusetts  under  which  they  had  lived  so  agreeably  for 
thirty-eight  years.^ 


'In  1772  complaint  was  made  to  the  Lords  of  Trade  that  the  Governor 
and  Council  had  deprived  grantees  under  the  crown  of  their  lands  "  without 
any  legal  process"  or  a  trial  by  jury  (Belknap,  ed.  1812,  III,  Appendix; 
Farmer's  Belknap,  345;  Prov.  Papers,  VII,  338). 

''Prov.  Papers,  II,  59,  307,  369 ;  VI,  910 ;  VII,  124 

'  Belknap  (Farmer's  Edition,  97)  says  that  Cranfield  was  the  first  to  whom 
such  power  was  granted  in  New  England. 

*Palfrey,  II,  267. 

*  See  Prof.  T.  F.  Moran's  Bise  and  DevehpmerU  of  the  Bicameral  System  in 
America,  J.  H.  U.  Studies,  Thirteenth  Series,  V,  13-16 ;  Belknap's  Hist,  of 
N.  H.,  1, 178-9. 

'Prov.  Papers,  I,  382-3;  N.  H.  Hist.  CoU.,  VIII,  10. 

'Sanborn's  Hist,  of  N.  H,  78-9. 


139]  New  Hampshire.  47 

President  Cutts  died  in  1681  and  was  succeeded  on  the 
following  year  by  Edward  Cran field.  Owing  to  Cranfield's 
unpopularity,  in  less  than  four  months  after  his  arrival  in  the 
colony,  three  members  of  the  Council  had  voluntarily  with- 
drawn and  three  others  had  been  dismissed.^  On  account  of 
a  disagreement,  the  Assembly  was  dissolved  by  Cranfield,  Jan- 
uary 20th,  1683.^  The  Governor  and  Council  then  assumed 
the  entire  legislative  authority,^  which  they  retained  until 
forced  by  need  of  money  to  summon  a  new  Assembly.*  At 
this  session  of  the  Assembly  which  convened  January  14,  1684, 
we  find  the  first  assertion  in  New  Hampshire  of  a  prerogative 
which  was  claimed  sooner  or  later  by  the  lower  house  in  all 
the  colonies,  except  perhaps  Rhode  Island.*  The  Represen- 
tatives rejected  as  "  unparliamentary,"  a  money  bill  which 
had  been  previously  passed  by  the  Council.®  The  Governor 
dissolved  the  Assembly  on  the  following  day,''  and  attempted 
to  levy  taxes  upon  his  own  authority.^  Failing  iu  this,  he 
summoned  a  third  Assembly  six  months  later.'  This  Assem- 
bly also  exhibited  a  spirit  of  insubordination  to  his  demands 
and  was  likewise  dismissed  after  a  short  session.  From  this 
time  the  right  to  originate  money  bills  was  never  relinquished 
by  the  popular  branch  of  the  Assembly. 

After  the  unsettled  period,^"  immediately  following  the  im- 
prisonment of  Andros"  in  1689,  Samuel  Allen  was  appointed 
Governor  and  John  Usher  Lieutenant  Governor  of  the  colony. 
The  commission  ^^  and  instructions  ^^  of  Governor  Allen,  which 

^  Farmer's  Belknap,  98.    Two  of  the  latter  were  afterwards  restored. 

»76id.  'Phw.  Papers,  I,  618.  ■•  Farmer's  Belknap,  104. 

'  See  infra.  *  Farmer's  Belknap,  104. 

Uhid.  '^Ibid.,  110.  Ubid. 

^•^  From  the  surrender  of  Andros'  government,  April  18, 1689  {Prov.  Papers, 
II,  pt.  I,  p.  21),  until  the  accession  of  Governor  Allen,  there  was  no  legalized 
government  in  the  colony.     {Ibid.,  30  ei  seq.). 

"  During  his  administration  there  was  no  popular  branch  of  the  Legisla- 
ture. Laws  were  made  by  the  Governor  and  his  C!ouncil  of  fifteen,  only  one 
of  whom  was  from  New  Hampshire.    {Ibid.,  118-9). 

^'Ibid.,b7.  "Ibid.,  63. 


48  Colonial  Origins  of  New  England  Senates.         [140 

were  issued  March,  1692,  constituted  a  frame  of  government, 
the  Legislature  of  which  was  substantially  the  same  as  that 
provided  for  in  the  commission  of  President  Cutts.  In  fact 
no  important  change  was  made  in  the  legislative  power  of  the 
Council  througiiout  tiie  rest  of  the  colonial  period. 

The  Assembly  was  held  under  the  strict  surveillance  of  the 
royal  officera,  and  was  kept  too  severely  in  check  to  admit  of 
that  expansion  which  was  necessary  in  order  to  keep  apace 
with  the  advancing  ideas  of  the  people.  Not  only  was  the 
Council  at  the  mercy  of  the  royal  Governor,  but  the  popular 
branch  was  held  largely  within  the  limits  of  his  desires  by  his 
veto  power  and  his  authority  to  prorogue  its  sessions.  Above 
them  all  stood  the  King  who  retained  'Hhe  prerogative  of 
disannulling  the  acts  of  the  whole  at  his  pleasure." 

The  last  session  of  the  General  Assembly  under  the  govern- 
ment of  Great  Britain  was  held  July  18,  1775.^  Previous  to 
this  date  the  government  of  the  colony  had  been  gradually 
assumed  by  representatives  of  the  people  who  formed  them- 
selves into  a  Provincial  Congress.^  This  peculiar  form  of 
government  continued  until  January  5, 1776,  when,  according 
to  the  last  vote  of  the  Fifth  Provincial  Congress,  it  was  decided 
to  "  take  up  Civil  Government."  ^ 


Section  V. — The  Constitution  of  1776. 

This  body  then  tried  its  skill  at  constitution-making.  It 
first  metamorphosed  itself  into  a  popular  branch  of  the  Legis- 
lature by  assuming  "  the  Name,   Power  &  Authority  of  a 


1  Prov.  Papers,  VII,  385. 

*  Under  this  form  of  government  the  entire  political  authority  of  the 
people  was  delegated  to  a  body  of  men  who  exercised  executive  as  well  as 
legislative  power.  During  the  recesses  of  this  body  their  power  was  exer- 
cised by  a  "  (Jommittee  of  Safety,"  whose  acts  were  as  binding  as  those  of 
the  entire  Congress. 

'  Prov.  Papers,  y III,  2. 


141]  New  Hampshire.  49 

house  of  Representatives  or  Assembly  for  the  Colony  ^  of  New 
Hampshire,"  ^  and  then  proceeded  to  create  a  new  Council  to 
take  the  place  of  the  old  one  which  had  disappeared  with  the 
royal  government.  This  Council,  like  its  predecessor,  consti- 
tuted "  a  Distinct  and  Separate  Branch  of  the  Legislature."  ^ 
It  resembled  the  old  Council  in  size  and  character  of  mem- 
bership,* but  differed  from  it  in  two  respects.  The  new 
Counsellors  were  chosen  by  popular  election  after  the  expiration 
of  the  term  of  the  first,  who  were  appointed  by  the  House ; 
and  they  were  apportioned  among  the  different  counties  of 
the  colony,^  five  being  from  Rockingham,  two  from  Stafford, 
two  from  Hillsborough,  two  from  Cheshire  and  one  from 
Grafton  County.® 

This  constitution  did  not  confer  any  judicial  authority  upon 
the  Council,  as  a  body,  independent  of  the  Assembly ;  and  on 
January  26, 1776,  "All  clauses"  of  the  colonial  laws  "Respect- 
ing the  Governor  &  Council  Sitting  or  acting  as  a  Court  of 
Appeals"  were  repealed/  and  the  supreme  judicial  power  was 
assumed  by  the  legislature.^  This  act  abolished  the  tribunal 
which  the  colonists  had  considered  a  grievance  for  several 


^  The  title  of  "  State  "  was  not  assumed  until  September  10,  1776.  {Prov. 
Papers,  VIII,  332). 

«  Prov.  Papers,  VIII,  3 ;   N.  H.  Hist.  Coll.,  IV,  151-2.  ^  Ibid. 

*  September  19,  1776,  provision  was  made  for  adding  to  the  membership 
of  both  branches  of  the  Legislature  upon  the  accession  of  new  towns  or 
settlements.     {Prov.  Papers,  VIII,  344;  N.  H.  Hist.  Coll.,  IV,  154). 

'  Prov.  Papers.,  VIII,  3,  4;  N.  H.  Hist,  ail.,  IV,  153. 

^  Prov.  Papers,  VIII,  3,  6.  As  early  as  1717  the  choice  of  Counsellors 
from  one  locality  (Portsmouth)  had  been  made  a  cause  for  complaint  on  the 
part  of  the  Assembly.  We  are  told  that  at  that  time  "ye  whole  number" 
of  counsellors  resided  "  w*in  two  miles  or  therea*"'  one  of  another."  {Prov. 
Papers,  III,  675).  For  this  reason  the  Kepresentatives  very  properly 
claimed  at  a  later  date,  that  they  were  better  acquainted  with  the  needs 
and  desires  of  the  people  than  were  the  Counsellors.  {Prov.  Papers,  VII, 
203-4). 

'  Prov.  Papers,  VIII,  60. 

*  A  very  strong  plea  against  such  an  exercise  of  power  was  presented  in 
the  case  of  the  State  vs.  Porter.     {Prov.  Papers,  VIII,  327-8). 

4 


60  Colonial  Origins  of  New  England  Senates.         [142 

years.^  With  its  enforcement  the  Council  as  a  body  ceased  to 
exercise  judicial  powers,  but  its  members  still  served  iu  an 
ex  officio  judicial  capacity  as  individuals.^ 

One  of  the  greatest  defects  of  the  hastily  formed  Constitution 
of  1776  was  the  want  of  an  executive  branch  of  government. 
To  remedy  this  the  two  houses  "  of  Legislature  during  their 
session  performed  executive  as  well  as  legislative  duty,"  and 
at  every  adjournment  a  Committee  of  Safety  was  appointed  to 
transact  the  business  of  the  colony  "  in  the  recess  of  the  Gen- 
eral Assembly."  ^  The  appointment  of  "  all  civil  officers  for 
the  Colony  &  for  Each  County,"  "  Except  Clerks  of  Courts 
&  County  Treasurers  &  Recorders  of  Deeds  "  was  vested  in 
both  houses  of  the  Legislature.*  They  also  appointed  the 
higher  military  officers  who  had  been  previously  appointed  by 
the  royal  Governors.' 

No  changes  were  made  in  the  legislative  powers  of  the 
Council.  All  acts  and  resolves  "  agreed  to  and  passed  by  both 
Branches  of  the  Legislature  "  had  the  force  of  law  ^  and  all 
"  Bills,  Resolves  or  votes  for  Raising,  Levying  &  Collecting 


^  See  supra. 

*0n  January  12,  1776,  it  was  voted  "That  the  members  of  the  Hon*''* 
Council  ...  be  Justices  of  the  Peace  and  of  the  Quorum  throughout"  the 
colony.  {Prov.  Papers,  VIll,  18).  They  were  also  permitted  to  fill  any 
other  judicial  ofiice  to  which  they  might  be  chosen,  since  membership  in 
the  Council  did  not  disqualify  them  for  such  positions.  ( Farmer's  Belknap, 
364). 

'  Prov.  Papers,  VIII,  21.  The  orders  and  recommendations  of  this  com- 
mittee had  the  same  eflfect  as  the  acts  and  resolves  of  the  Council  and  House 
while  in  session.  {N.  H.  Hist.  CoU.,  II,  38,  note).  The  committeemen  were 
chosen  by  the  Legislature  and  varied  in  number  from  six  to  sixteen.  The 
President  of  the  Council  was  also  President  of  the  Executive  Committee. 
(Farmer's  Belknap,  364). 

*Prov.  Papers,  VIII,  4;  N.  H.  Hist.  CoU.,  IV,  16.S. 

''Prov.  Papers,  VIII,  3,  4;  N.  H.  Hist.  Coll.,  IV,  153. 

«Prw.  Papers,  VIII,  3;  N.  H.  Hist.  Coll.,  IV,  152.  This  rule  had  been 
observed  ever  since  the  meeting  of  the  first  General  Assembly  of  the  colony 
in  1679-80. 


143]  New  Hampshire.  51 

money "  were  still  required  to  "  Originate  in  the  House  of 
Representatives."  ^ 

Section  VI. — The  Proposed  Constitution  of  1779.^ 

This  instrument  proposed  the  following  changes:  (1)  That 
the  Governor  with  the  advice  of  the  Council  be  authorized  to 
grant  reprieves,^  to  call  extra  sessions  of  the  General  Court, 
and  to  point  out  the  principal  business  of  such  sessions.*  (2) 
That  the  members  of  the  Council  be  disqualified  from  holding 
the  office  of  Sheriff.'  (3)  That  no  member  of  the  General 
Court  should  be  judge  of  the  Superior,  the  Inferior,  or  the 
Probate  Court.®  The  significance  of  this  constitution  is  the 
fact  that  it  marks  a  tendency  towards  a  separation  of  the 
functions  of  government. 

Section  VII. — The  Proposed  Constitution  of  1781.' 

This  constitution  marks  another  step  in  the  development  of 
the  ideas  of  the  people  towards  a  separation  of  the  functions 
of  government  which  was  so  vaguely  indicated  by  the  pro- 
posed constitution  of  1779.  The  executive  power  of  the  state 
was  to  be  vested  in  the  Governor  and  a  new  body  to  be  known 
as  the  "Privy  Council."*  The  former  Council  of  twelve  was 
to  be  continued  under  the  title  of  "  Senate,"  and  its  powers 
were  to  be  restricted  to  the  legislative  function  alone.^ 

^Prov.  Papers,  VIII,  3;  N.  H.  Hist.  Coll.,  IV,  152.  This  power  had  also 
been  exercised  by  the  House,  throughout  the  history  of  the  colony. 

*  Although  it  was  rejected  by  the  people  in  their  town  meetings  on  account 
of  its  imperfections,  the  principal  one  of  which  was  the  omission  of  a  pro- 
vision for  the  chief  executive,  it  nevertheless  indicates  certain  advances  in 
the  ideas  of  the  people  as  to  the  duties  of  the  Council.  A  copy  of  this 
Constitution  is  given  in  N.  H.  Hist.  Coll.,  IV,  154,  et  seq. 

3JV.  H.  Hist.  Coll.,  IV,  160.  *Ibid.,  159.  Ubid.,  160.  ^Tbid. 

''  This  constitution  is  not  given  in  the  N.  H.  HisL  Coll.,  but  the  Address 
accompanying  it  which  discussed  its  main  features  may  be  found  in  Ibid., 
IV,  162-73. 

^N.  H.  Hist.  GoU.,  IV,  170.  'JMd,  166 ;  Farmer's  Belknap,  383. 


52  Colonial  Origins  of  New  England  Senates.         [144 


Sectim  VIII.—The  Constitution  of  1783-4.^ 

The  adoption  of  the  second  state  constitution  marks  the  final 
step  in  the  evolution  of  the  Senate  in  New  Hampshire. 

It  declared  that  "  the  three  essential  powers  "  of  government 
"  ought  to  be  kept  as  separate  from  and  independent  of  each 
other  as  the  nature  of  a  free  government  will  admit."  ^ 

The  executive  power  was  vested  in  the  President  of  the  state 
and  his  Couucil  of  five — two  Senators  and  three  Representa- 
tives— who  were  chosen  annually  by  a  joint  ballot  of  both 
houses.^ 

The  judicial  power  was  exercised  by  officers  chosen  by  the 
President  and  his  newly  created  Council.* 

The  supreme  legislative  power  was  vested  in  a  General 
Court  composed  of  a  Senate  and  a  House  of  Representatives, 
each  of  which  had  "a  negative  on  the  other.'"*  The  Senate 
was  an  exact  counterpart  of  the  Council  under  the  first  consti- 
tution. It  consisted  of  twelve  persons,®  seven  of  whom  were 
necessary  to  constitute  a  quorum.  Its  members  were  to 
be  elected  by  districts ;  but,  until  otherwise  ordered  by  the 
General  Court,  the  different  counties  were  to  elect  each  the 


'A  copy  of  this  constitution  is  given  in  N.  H.  State  Papers,  XX,  9-30,  and 
in  Poore,  II,  1280,  el  seq.  The  convention  that  drew  up  the  constitution  of 
1781  continued  its  labors  for  a  period  of  more  than  two  years  (June,  1781 
to  October,  1783),  and  held  no  less  than  nine  sessions.  The  result  of  their 
prolonged  labors  is  the  constitution  which  was  adopted  June  2,  1784. 

'Bill  of  Bights,  Art.  XXXVII.  The  incorporation  of  this  principle 
was  probably  due  to  the  able  arguments  in  the  case  cited  above  (p.  49, 
note  8)  and  to  the  influence  of  other  state  constitutions  which  embodied  this 
feature — particularly  that  of  Massachusetts,  "  which  was  supposed  to  be  an 
improvement  on  all  which  had  been  framed  in  America."  (Farmer's 
Belknap,  383.) 

"State  Papers,  XX,  24;  Poore,  II,  1289. 

*StaU  Papers,  XX,  23 ;  Poore,  II,  1288. 

'^StaU  Papers,  XX,  15 ;  Poore,  II,  1284. 

*  Presided  over  by  the  President  of  the  State  who  had  a  vote  "  equal  with 
any  other  member,"  and  also  "  a  casting  vote  in  case  of  a  tie." 


145]  New  Hampshire.  53 

same  number  of  Senators  that  had  been  granted  them  by  the 
constitution  of  1776.^  The  House  still  retained  the  power  to 
originate  money  bills,  but  the  Senate  had  power  to  "  propose 
or  concur  with  amendments  as  on  other  bills."  ^  The  only 
remnant  of  judicial  power  left  the  Senate  was  the  trial  of  im- 
peachments made  by  the  House  of  Representatives,^  as]  was  the 
case  in  most  other  states. 

Senators  were  required  to  belong  to  the  Protestant  faith ;  to 
be  possessed  of  a  freehold  estate  of  two  hundred  pounds  with- 
in the  State ;  to  be  at  least  thirty  years  of  age,  inhabitants  of 
the  state  seven  years,  and,  at  the  time  of  their  election,  inhabi- 
tants of  the  district  from  which  they  were  chosen.* 


1  Cf.  Prov.  Papers,  VIII,  3,  with  Stale  Papers,  XX,  16 ;  Poore,  II,  1285. 

'State  Papers,  XX,  20 ;  Poore,  II,  1287. 

'State  Papers,  XX,  18 ;  Poore,  II,  1286.  *Ibid. 


CHAPTER  IV. 
I         Rhode  Island. 

Section  I. —  Governmental  Beginnings. 

The  first  settlers  of  this  state  founded  not  a  single  colony, 
but  four  separate  and  distinct  settlements;  namely,  Provi- 
dence in  1636,  Portsmouth  in  1638,  Newport  in  1639,  and 
Warwick  in  1642. 

These  towns  were  at  first  independent,  self-centred  commu- 
nities of  persons  who  differed  no  less  in  governmental  ideas  ^ 
than  in  religious  faith.    There  seems  to  have  been,  however,  a 


*In  1637,  thirteen  of  the  settlers  of  Providence  signed  a  civil  compact  in 
which  they  agreed  to  be  governed  '*  by  the  maior  consent  of  the  ....  Ihabi- 
tants  maisters  of  families  Incorporated  Together  into  a  towne  fellowship  and 
others  whome  they"  should  ''admit  unto  them"  "only  in  civill  things." 
{Early  Eec.  of  the  Town  of  Prov.,  I,  1 ;  B.  I.  Col.  Rec,  I,  14.)  Town  meet- 
ings of  all  the  inhabitants  were  held  monthly  down  to  1640,  when  the  growth 
of  the  colony  rendered  a  purely  democratic  government  impracticable. 
(Mr.  W.  E.  Foster's  Town  Government  in  Rhode  Island,  J.  H.  U.  Studies, 
Fourth  Series,  II,  p.  13,  16,  19 ;  Arnold's  Hist,  of  the  State  of  Rhode  Island, 
I,  102. )  "  The  general  business  of  the  town  "  with  a  few  exceptions,  was 
then  delegated  to  "  5  Disposers "  who  held  monthly  meetings.  They  were 
chosen  by  the  town  meetings  in  which  all  the  freemen  henceforth  assembled 
quarterly.  {R.  I.  Col.  Rec.,  I,  108-9 ;  Historical  Discourse  by  Hon.  Thomas 
Durfey  in  250th  Anniversary  of  Providence,  127.) 

The  Portsmouth  settlers  inclined  to  a  sort  of  theocracy.  Following  Ju- 
daic example,  they  chose  a  Judge  "  to  exercise  authority  among  them." 
{R.  I.  Col.  Rec.,  I,  52.)  Witliin  a  year  three  elders  were  associated  with 
him  and  to  them  all  was  given  "  the  whole  care  and  charge  of  all  the  af- 
fairs" of  the  colony.  They  were  to  administer  justice  and  to  draw  up  such 
rules  and  laws  as  should  be  for  the  general  welfare  and  "according  to  God." 
In  1639,  the  people  discarded  the  theocratic  element  to  a  great  extent  and 

54 


147]  RTwde  Island.  55 

direct  line  of  institutional  development  from  germs  that  ap- 
peared at  the  foundation  of  the  two  island  governments,  which 
later  united,  and  not  only  took  the  initial  step  towards  a  union 
of  all  the  settlements,^  but  furnished  a  model  for  the  govern- 
ment of  the  whole  colony.^  By  a  rapid  series  of  developments 
the  Judges  in  the  separate  towns  of  Portsmouth  and  Newport 


constituted  themselves  into  "a  civill  body  politicke."  {Ibid.,  70.)  The 
offices  of  Judge  and  Elders  were  continued  and  the  number  of  the  latter 
was  increased  to  seven.  Their  duties  as  a  body  seem  to  have  been  confined 
principally  to  the  judicial  function,  and  a  jury  system  was  introduced.   {Ibid.) 

The  government  of  Newport  was  a  counterpart  of  that  of  Portsmouth, 
from  which  it  sprang,  and  with  which  it  was  finally  united.  It  also  had 
Judges  and  Elders  {Ibid.,  87)  who  served  chiefly  in  a  judicial  capacity  {Ibid., 
90,  93),  though  they  were  granted  some  executive  power.  {Ibid.,  95).  In 
legislative  power  they  do  not  seem  to  have  been  superior  to  other  freemen 
who  attended  the  General  Quarter  Courts. 

In  1640  Portsmouth  and  Newport  united  in  a  common  government. 
{Ibid.,  100).  The  titles  of  "Judge"  and  "Elder"  were  then  abolished  by 
the  General  Court  and  those  of  "Governor"  and  "Assistant"  substituted 
in  their  stead.  Provision  was  made  for  the  election  of  a  Governor,  a 
Deputy  Governor  and  four  Assistants,  the  Governor  and  two  Assistants  to 
be  chosen  in  one  town  and  the  Deputy  and  two  other  Assistants  in  the  other 
town.  {Ibid.,  101).  They  were  "  invested  with  the  offices  of  Justices  of  the 
Peace"  ex  officio.  At  the  next  "General  Courte,"  "particular  Courts"  con- 
sisting of  "  Magistrates  (Assistants)  and  Jurors  "  were  established  to  be  held 
each  month  at  Newport  and  Portsmouth  alternately  for  the  trial  of  "  all 
such  cases  and  actions  as  shall  be  presented."  {Ibid.,  103).  Three  months 
later  the  Magistrates  of  each  town  were  constituted  a  tribunal  for  the  trial 
of  all  cases,  matters  of  life  and  death  only  excepted,  that  might  arise  in  their 
respective  towns. 

The  settlers  at  Warwick,  under  the  influence  of  Gorton,  maintained  that 
they  had  no  legal  right  to  erect  a  government  without  being  authorized  to 
do  so  by  the  mother  country.  {Ibid.,  129).  They  therefore  remained  with- 
out any  form  of  government  until  the  organization  of  the  colonial  govern- 
ment in  1647. 

^R.  I  Col.  Rec,  I,  125;  Arnold,  I,  113. 

*  Providence  instructed  its  commissioners  who  attended  the  first  meeting 
of  the  towns  under  the  charter  of  1663-4  "  to  hold  correspondency  with  the 
whole  in  that  model  that  hath  been  lately  shown  unto  us  by  our  worthy 
friends  of  the  Island."  {R.  I.  Col.  Rec.,  I,  43;  Staples'  Annals,  R.  I.  Hist. 
Soc.  Coll.,  Vol.  V,  62). 


66  Colonial  Origins  of  New  England  Senates.         [148 

were  succeeded  by  the  Governor  of  the  united  government  of 
the  island,  and  then  the  President  of  the  whole  colony  under 
the  first  charter.^  The  Elders  at  the  same  time  and  by  a  simi- 
lar course  of  evolution  became  the  Magistrates  or  Assistants  of 
the  island  and  then  of  the  united  colony.^  The  history  of  their 
development  into  a  Senate  is  unique.  They  came  into  existence 
as  a  purely  executive  and  judicial  body,  but  later  acquired  legis- 
lative power  without  losing  their  authority  in  the  other  branches 
of  government.  They  finally  lost  their  executive  and  judicial 
functions,  but  retained  legislative  power,  and  thus  became  a 
true  Senate. 

On  March  14,  1643-4,  the  English  Parliamentary  Commis- 
sion granted  a  charter  or  patent^  to  Providence,  Newport  and 
Portsmouth  *  under  the  name  of  the  Providence  Plantations.' 


*This  charter  was  formed  upon  the  Massachusetts  model,  with  an  addi- 
tional feature  which  provided  for  a  representative  system,  similar  to  that 
which  had  grown  up  in  Massachusetts.  All  the  New  England  colonies  were 
assimilated  to  the  same  model. 

'  See  supra. 

'  There  seems  to  be  no  ground  for  the  distinction  between  a  charter  and  a 
patent  as  given  in  Jameson's  Dictionary  of  American  History,  p.  124.  That 
grants  to  individuals  were  not  always  called  patents  is  evident  from  the 
wording  of  the  instruments  granted  to  Lord  Baltimore  (Poore's  Charters  and 
Constitutions,  I,  811-17)  and  to  William  Penn  {Ibid.,  II,  1509-15).  On  the 
other  hand  the  words,  "charter"  and  "patent,"  seem  to  have  been  indis- 
criminately used  to  designate  grants  both  to  corporations  and  to  individuals. 
See  R.  I.  Col.  Bee,  II,  143-6 ;  Conn.  Col.  Bee,  I,  384.  In  fact,  no  distinc- 
tions seem  to  have  been  made,  by  the  colonists  at  least,  in  the  use  of  these 
terms.  Penn  referred  to  his  "charter"  of  1681  as  "Letters  Patent." 
(Poore's  Charters  and  Constitutions,  II,  1536).  See  also  Jacob's  Law  Dic- 
tionai-y  (London,  1809)  under  titles  "  Charters  of  Private  Persons,"  "Grants 
of  the  King"  and  "Patents,"  and  Black's  Law  Die,  pp.  196,  877. 

*  Although  Warwick  was  not  mentioned  in  the  charter,  it  united  with  the 
other  towns  at  the  organization  of  the  government  of  the  colony. 

*  A  copy  of  this  charter  may  be  found  in  B,  I.  Col.  Bee,  I,  143-6 ;  Coll. 
of  B.  I.  Hist.  Soc,  IV,  221-5 ;  and  Poore's  Charters  and  Constitutions,  II, 
1594-5.  An  excellent  account  of  the  "  Origin  of  the  Charter  Government 
and  Its  Fundamental  Principles"  may  be  found  in  Burke's  Report  on 
" Bhode  Island — Interference  of  the  Executive  in  the  affairs  of,"  (Pub.  Doc., 
28th  Congress,  Ist  Session.    House  Representatives  Report  No.  546)  6-8. 


149]  Ehode  Island.  57 

It  prescribed  no  form  of  government  nor  mode  of  organization. 
In  fact,  it  still  left  the  towns  independent  of  each  other  and 
was  calculated  to  produce  a  confederation  (Staatenbund)  rather 
than  a  union  {Bundestaat)} 

After  the  lapse  of  more  than  three  years  from  the  granting 
of  the  charter,  the  first  General  Assembly  of  the  colony  met 
at  Portsmouth.  The  charter  was  then  formally  adopted  and 
the  government  systematically  organized.  The  executive  and 
ludicial  powers  were  largely  vested  in  a  President  and  four 
Assistants,^  the  latter  of  whom  were  annually  elected  by  the 
freemen  of  the  several  towns.  A  novel  method  of  making 
laws  was  then  devised,  by  which  the  legislative  power  was 
made  to  reside  ultimately  in  the  people.^     This  cumbersome 


*  Staples'  Annals,  68 ;  Arnold's  Hist,  of  R.  I.,  I,  286.  The  charter  granted 
the  inhabitants  "full  Power  and  Authority  to  rule  themselves"  "by  such  a 
Form  of  Civil  Government  as  by  voluntary  consent  of  all  or  the  greater 
Part  of  them,  they  shall  find  most  suitable  to  their  Estate  and  Condition." 
{B.  I.  Col.  Rec.  I,  145). 

*  Chalmers'  Annals.  273.  They  were  given  power  "  to  arrest  and  bail 
out  or  imprison  all  disturbers  of  the  peace"  {R.  I.  Col.  Rec,  I,  192-3); 
and  under  certain  circumstances,  to  issue  summons  {Ibid.,  340-1),  grant 
commissions  {Ibid.,  347),  and  call  special  sessions  of  the  General  Assembly 
{Ibid.,  276). 

As  a  judicial  tribunal  they  were  granted  power  "  to  hold  semi-annually 
the  General  Court  of  Tryall  for  the  whole  Colonic."  {Ibid.,  191,  194-5.) 
"This  court  was  held  semi-annually  and  its  jurisdiction  extended  over  all 
matters  of  greater  weight,"  such  as  the  higher  class  of  crimes,  cases  between 
town  and  town,  between  citizens  and  strangers ;  and  in  general,  to  all 
matters  "not  referred  to  other  tribunals."  (Durfee's  Gleanings  from  the  Ju- 
dicial Hist.  ofR.  I,  7,  8,  Pub.  in  E.  I.  Hist.  Tracts,  No.  18.)  In  1651,  this 
tribunal  was  "converted  into  a  court  of  appeal  or  review."     {Ibid.) 

They  were  also  made  "  conservators  of  the  peace  in  the  Towne  where  they 
live  and  throwout  the  whole  Colony"  {R.  I.  Col.  Rec.,  I,  192),  and  were 
authorized  to  act  as  Coroner  in  each  town  where  they  dwelt.      {Ibid.,  195.) 

^Any  town  of  the  colony  could  take  the  initiative  in  legislation.  When 
a  town  desired  the  enactment  of  a  law  which  concerned  the  whole  colony, 
the  bill  was  drawn  up,  discussed  and  voted  upon  in  the  town-meeting.  If 
it  was  favorably  considered  by  this  meeting,  a  copy  of  the  proposed  law 
was  sent  to  the  other  towns  for  similar  consideration.  A  report  of  the  ac- 
tions of  all  the  towns  was  then  'commended'  to  the  "Committee  for  the 


68  Colonial  Origins  of  New  England  Senates.         [150 

method,  however,  was  forsaken  after  a  brief  trial  and  the 
legislative  power  came  to  be  largely  exercised  by  a  "  Com- 
mittee "  of  six  from  each  of  the  towns. 

The  second  charter,  which  was  granted  in  1663,  marks  the 
entrance  of  the  Assistants  upon  the  legislative  domain.  It 
vested  the  government  of  the  colony  in  a  Governor,  Deputy 
Governor,   ten   Assistants,^   and    eighteen    Deputies.^      The 

General  Courts" — a  body  composed  of  six  from  each  town.  If  it  was 
found  that  "  the  major  parte  of  the  Colonie "  concurred  in  the  bill  it  was 
declared  "  a  Law  till  the  next  Generall  Assembly  of  all  the  people  "  should 
determine  whether  or  not  it  should  continue  longer.  In  all  cases  where  the 
Assembly  took  the  initiative  in  legislation,  the  bill  as  passed  by  that  body 
was  referred  by  the  Committee  to  the  different  towns,  where  it  was  voted 
on  by  the  people.  These  votes  were  sent  "  by  the  Towne  Clarke  of  each 
Towne  ...  .to  the  General  Recorder,"  who,  in  the  presence  of  the  Presi- 
dent opened  and  counted  them.  If  a  majority  of  the  votes  were  favorable 
to  the  bill  it  stood  "  as  a  law  till  the  next  General  Assemblie  "  when  it  was 
either  confirmed  or  annulled.  (i2.  /.  Col.  Rec,  I,  148-9;  Staples'  Annah, 
65.)  The  Committee  gradually  assumed  legislative  authority  under  the 
title  of  "the  Court  of  Commissioners"  until  they  came  to  be  in  fact  the 
General  Assembly,  although  others  who  desired  might  sit  with  them. 
{B.  I.  Col.  Bee,  I,  213,  228,  277 ;  Arnold,  I,  219.)  Having  assumed  the 
authority  of  the  General  Assembly  they  then  assumed  that  title.  (Arnold, 
I,  230. )  A  limit  was  also  made  to  the  time  when  the  towns  might  inter- 
pose their  objections  to  acts  initiated  by  the  General  Assembly,  which  acts 
otherwise  became  laws.  {B.  I.  Col.  Bee,  I,  229,  401,  429.)  The  referen- 
dum was  finally  abolished  under  the  second  charter  (B.  I.  Col.  Bee,  II,  26) 
and  in  1672  speaking  "against  any  of  the  Acts  and  Orders"  of  the  Assem- 
bly "at  any  time,  more  especially  in  any  town  meeting,"  etc.,  was  made  a 
crime  punishable  "  at  the  discretion  of  the  Justices."     {Ibid.,  439. ) 

*  Of  the  twelve  State  Officers — two  Executives  and  ten  Assistants — five 
were  required  to  be  inhabitants  of  Newport,  three  of  Providence  and  two 
each  of  Portsmouth  and  Warwick.  {B.  I.  Col.  Bee,  II,  33 ;  Staples'  ArniaJi, 
141 ;  Arnold,  I,  302).  This  appears  to  have  been  the  first  instance  in  New 
England,  and  probably  in  any  of  the  colonies,  in  which  the  Counsellors  were 
distributed  according  to  geographical  location.  An  act  which  was  passed 
in  Massachusetts  in  the  administration  of  Governor  Phipps  (1694),  re- 
quiring all  Deputies  to  be  residents  of  the  district  they  represented,  is  often 
incorrectly  cited  as  the  first  instance  in  which  this  principle  was  introduced 
in  the  American  colonies. 

*  Newport  was  allowed  six  Deputies  and  the  three  remaining  towns  four 
each.  Towns  that  might  be  subsequently  added  were  to  be  allowed  two 
Deputies  each. 


151]  Rhode  Island.  59 

Assistants  were  elected  annually  and  represented  the  colony 
as  a  whole,  while  the  Deputies  were  elected  semi-annually^ 
and  represented  the  towns. 

Section  II. — The  Executive  Function. 

This  charter  granted  the  Governor  or  Deputy  Governor  and 
Assistants  authority  over  the  militia,  whenever  occasion  might 
arise  in  a  recess  of  the  General  Assembly.^  This  proved  a 
very  important  and  timely  provision,  since  ample  occasion 
soon  arose  for  the  exercise  of  such  power.  Beginning  in  May, 
1667,  the  Governor  and  Council, — for  such  it  had  become  in 
name  ^ — held  frequent  meetings  in  the  intervals  of  the  General 
Assembly.^  This  became  necessary  because  of  a  threatened 
invasion  by  the  French  and  Dutch,  with  whom  the  mother 
country  was  at  enmity,  and  the  rapidly  developing  hostility  of 
the  Indians  which  finally  culminated  in  King  Philip's  War. 
Their  charter  powers  were  amplified  by  the  General  Assembly 
which  authorized  them  to  raise  and  equip  troops ;  to  order 
their  movements ;  to  appoint  and  commission  officers ;  and  in 
short,  to  take  all  necessary  steps  for  defending  the  colony, 
if  occasion  should  arise.®  In  the  exercise  of  these  duties, 
their  acts  were  considered  equally  binding  with  those  of  the 
Assembly.^  In  1669  they  arranged  for  monthly  meetings  of 
the  Council,^  but  the  condition  of  affairs  rendered  it  necessary 


*  The  origin  of  semi-annual  elections  of  Deputies  probably  dated  back  to 
the  act  of  the  first  General  Assembly  of  the  colony  (1647)  by  which  the 
representative  system  was  created.  It  provided  that  "  a  week  before  any 
General  Courte,"  which  met  twice  a  year,  "  notice  should  be  given  to  every 
Towne  by  the  head  officers  that  they  chuse  a  Committee  for  the  Transaction 
of  the  affairs  there."     {B.  I.  Col.  Bee.,  I,  147). 

*  B.  I.  Col.  Bee,  II,  14 ;   Douglass'  Summary,  II,  85. 

'  Within  a  year  of  the  granting  of  the  charter,  the  Assistants,  while  acting 
in  an  executive  capacity,  assumed  the  title  of  "  Council."  (22.  /.  Ool,  Bee, 
II,  67). 

*  Ibid.,  191  et  seq.  *  Ibid.,  205-8,  212. 

6  Arnold,  I,  330.  ^  B.  I  Col.  Bee.,  II,  256. 


60  Colonial  Origins  of  New  England  Senates.         [152 

to  assemble  much  more  frequently.^  Their  summary  dealings 
with  Ninecraft,^  their  effective  action  in  the  King's  Province 
dispute,'  their  prompt  announcement  of  the  royal  proclama- 
tions *  and  their  power  to  treat  with  enemies '  and  to  appoint 
town  officers,'  indicate  the  nature  and  extent  of  their  executive 
authority  from  time  to  time.  In  October,  1708,  we  find  that 
no  war  measures  at  all  were  taken  by  the  General  Assembly.^ 
This  was  probably  due  to  the  fact  that  sufficient  power  had 
already  been  granted  the  Council  to  provide  for  defence  against 
the  enemy .^ 

By  the  outbreak  of  the  Revolutionary  War,  however,  the 
Council  had  almost  ceased  to  exercise  executive  power  as  a 
body.  The  matters  which  arose  in  the  recess  of  the  Assembly 
were  entrusted  to  special  committees  appointed  by  that  body 
when  occasion  arose.  These  committees  varied  in  name'  and 
composition  ^°  from  time  to  time,  but  their  general  powers  were 
the  same  as  those  that  had  been  previously  exercised  by  the 
Governor  and  Council. 

Section  III. — The  Judicial  Fundion. 

"  The  charter,"  says  Judge  Durfee,  "  did  not  create  judicial 
tribunals,  but  empowered  the  General  Assembly  to  create 
them ;  and  accordingly,  the  General  Assembly,  at  its  first 
session  under  the  charter,"  turned  its  attention  to  a  reorganiza- 
tion of  the  judicial  system."    The  Assistants  were  given  power 

» Arnold,  I,  338. 

*E.  I.  Col.  Bee,  II,  264-6,  269;  Arnold,  I,  339  et  seg. 

*R.  I.  Col.  Hec,  II,  266,  298 ;  Arnold,  I,  338,  344-6. 

*R.  J.  Col.  Bee,  II,  461-2;  Arnold,  I,  359. 

"iJ.  i.  Col.  Bee,  II,  489-90.  "Ibid.,  Ill,  89. 

'  Ibid.,  IV,  48  el  seq.  *  Arnold,  II,  34. 

'They  were  called  "  Committees  of  Safety,"  "Recess  Committees,"  and 
«*  Councils  of  War." 

«»  jB.  /.  ai.  Bee,  VII,  327,  365,  383,  543 ;  VIII,  22, 56,  229,  316,  419,  422, 
471-2,  645,  616,  etc. 

"  Cleanings,  etc.,  11 ;  R.  1.  Col.  Bee.,  I,  25  et  seq. 


153]  Bhode  Island.  61 

greater  even  than  they  had  exercised  under  the  first  charter. 
In  fact,  they  seem  to  have  been  granted  almost  a  monopoly  of 
judicial  authority,  since  they  not  only  served  in  this  capacity 
as  individuals/  but  they  also  constituted  as  a  body,  four  of  the 
most  important  tribunals  in  the  colony.^ 

They  were  required  to  hold  "  a  special  Court  or  Courts  in 
Newport  for  merchants  and  seamen,  or  any  other,"  when 
occasion  arose ;  ^  also  semi-annual  "  Courts  of  Triall "  alter- 
nately at  Providence  and  Warwick  "  for  the  trial  of  any 
actional  matter  to  the  value  of  and  under  ten  pounds,  debt  or 
damages."*  Matters  referred  to  these  courts  finally  passed 
into  the  jurisdiction  of  the  county  courts  upon  the  division  of 
the  colony  into  counties."" 

The  General  Court  of  Trials  as  constituted  under  the  first 
charter  was  continued  under  the  second,  though  there  was  an 
alteration  in  its  composition  and  place  of  meeting.  Its  mem- 
bership was  confined  exclusively  to  the  Governor,  Deputy 
Governor,  and  at  least  six  Assistants,®  and  its  sessions  were 
held  semi-annually  at  Newport.*^  In  1729  its  name  was 
changed  to  "  The  Superior  Court  of  Judicature,  Court  of  As- 


^  They  were  ex  officio  members  of  the  town  councils  (B.  I.  Col.  Rec,  II, 
27 ;  Douglass'  Summary,  II,  85 ;  Staples'  Annals,  140,  155,  172)  and  served 
as  Coroners  in  the  towns  where  they  lived.     (i2.  /.  Col.  Rec.,  II,  28). 

*  These  were :  (1),  The  special  courts  for  Newport ;  (2),  Two  semi-annual 
courts  for  Providence  and  Warwick  ;  (3),  The  General  Courts  of  Trial ;  (4), 
Probate  Courts  with  only  an  appellate  jurisdiction.  They  also  constituted 
the  Court  for  King's  Province  until  1669.     {R.  I.  Col.  Rec.,  II,  256). 

3  R.  I.  Col.  Rec,  II,  26-7.  *Ibid.,  31. 

*  For  the  extent  of  jurisdiction  exercised  by  the  county  courts,  the  justices 
of  the  peace,  the  General  Sessions  of  the  Peace  and  the  Inferior  Courts  of 
Common  Pleas,  see  Acts  and  Laws  of  R.  I.  from  1745  to  1750,  ed.  1752,  77, 
110;  R.  I.  Col.  Rec.,y;  Douglass'  Summary,  II,  95-96. 

®  Under  the  charter  of  1643-4  this  court  was  composed  at  first  of  the 
Governor  and  iSssistants,  but  in  May,  1649,  the  Magistrates  of  the  town 
where  the  court  assembled  for  the  time,  were  added  to  the  tribunal.  (iJ.  1. 
Col.  Rec.,  I,  218). 

^  Under  the  former  charter  this  court  was  required  to  be  held  at  the  dif- 
ferent towns  of  the  colony  in  succession. 


62  Colonial  Origins  of  New  England  Senates.         [154 

size  and  General  Goal  Delivery,"  and  its  jurisdiction  became 
more  largely  appellate  in  both  civil  and  criminal  matters/  but 
its  composition  and  place  of  meeting, — two  of  its  most  radical 
defects  under  the  second  charter,^ — remained  unchanged.  But 
with  the  increase  of  litigation  consequent  upon  the  increase  of 
population,  the  Assembly  was  finally  forced  to  remedy  these 
defects.  The  change  was  made  in  1 747  by  an  act  which  re- 
quired that  in  lieu  of  the  Governor  or  Deputy  Governor  and 
Assistants,  this  court  should  be  held  by  five  judges,^  a  chief 
and  four  associates  who  were  to  be  appointed  annually  by  the 
General  Court.*  Although  this  act  excluded  the  Assistants 
from  an  ex  officio  seat,  they  were  still  eligible  to  judgeships  in 
this  tribunal,  since  the  offices  were  not  declared  incompatible. 
The  final  step  in  the  separation  of  these  two  offices  was  not 
taken  until  1780,  when  the  doctrine  of  a  separation  of  the 
functions  of  government  was  in  the  ascendency  in  the  newly 
created  states  of  the  Union.  It  was  then  enacted  by  the 
Assembly  that,  "  Whereas  it  is  incompatible  with  the  consti- 
tution of  this  state,  for  the  legislative  or  judicial  and  powers  of 
government  to  be  vested  in  the  same  persons,"  "  for  the  future, 
no  member,  either  of  the  upper  or  lower  house  of  Assembly 
....  shall  exercise  the  office  of  a  justice  of  the  superior  court, 
within  this  state,  from  and  after  the  next  election.'"'  This 
principle,  once  asserted,  rapidly  gained  ground,  and  in  May, 
1783,  an  act  was  passed  excluding  all  judges  of  the  Court  of 
Common  Pleas  from  the  General  Assembly.*  There  was  not, 
however,  an  absolute  separation  of  the  judicial  and  legislative 
functions  until  a  much  later  date,  since  the  Senate  still  exer- 
cised appellate  jurisdiction  in  probate  matter'' — a  power  which 

^  Douglass'  Summary,  II,  96-7. 

*  Durfee's  Gleanings  from  the  Judicial  Hist,  of  R.  I.,  16-20. 

•''  Any  three  of  whom  were  suflScient  to  constitute  a  quorum.     {R.  I.  OoL 
Bee.,  V,  226). 

*  Acts  and  Laws  of  R.  I.  from  1745  to  1750,  ed.  1752,  27-8.    Two  sessions 
of  this  ctfurt  were  to  be  held  annually  in  each  county  of  the  colony. 

*  R.  I.  Col  Ree.,  IX,  32.  Ubid.,  690. 
'  Douglass'  Summary,  II,  86,  97. 


155]  Rhode  Island.  63 

it  had  inherited  from  the  Colonial  Council.^  In  the  early  part 
of  the  present  century,  this  final  remnant  of  judicial  power  was 
transferred  from  the  Senate  to  the  Supreme  Judicial  Court,^ 
and  the  Senate  as  a  body  ceased  to  exercise  ex  ojido  judicial 
authority.^ 


'  In  1663  original  probate  jurisdiction  was  granted  to  the  town  councils 
from  whom  appeals  could  be  taken  to  the  Governor  and  Council  as  "  supreme 
ordinary  or  judge  of  probates," 

''Arnold  (II,  157)  says  this  change  occurred  in  1802,  while  Durfee  (33) 
says  it  occurred  in  1822. 

'  The  General  Assembly,  however,  not  only  exercised  judicial  authority 
throughout  the  colonial  period,  but  after  the  beginning  of  statehood,  it  con- 
tinued to  do  so  in  violation  of  the  wholesome  principle  which  had  been 
enacted  in  1780  (see  supra).  Under  their  oaths  of  oflSce  as  legislators,  the 
members  of  the  General  Assembly  assumed  the  responsibility  of  judges,  and 
it  is  difficult  at  times  to  decide  from  the  colonial  records  whether  the  legis- 
lative or  the  judicial  element  predominated  in  its  proceedings.  In  fact,  the 
prudent  limitations  placed  upon  the  range  of  its  jurisdiction  as  prescribed 
by  one  Assembly  were  often  totally  disregarded  by  another.  (Cf.  Arnold, 
I,  448,  with  Ibid.,  459-60).  Since  it  was  above  the  courts  it  could  exercise 
unlimited  authority,  and  therefore  often  came  in  conflict  with  them.  The 
case  of  Mawney  vs.  Peirce  came  up  before  the  Superior  Court  in  1752,  and 
was  decided  in  favor  of  the  plaintiff.  The  defendant  then  appealed  to  the 
Assembly  as  a  court  with  appellate  jurisdiction.  A  new  trial  was  granted 
before  the  Assembly,  and  a  verdict  was  rendered  which  "over-ruled  the 
decision  of  the  highest  actual  judicial  authority  in  the  colony."  (ij.  I. 
Col.  Rec,  V,  359 ;  Foster's  Town  Oovemment  in  R.  I.,  J.  H.  Studies, 
Fourth  Series,  II,  28).  The  case  of  Randall  vs.  Robinson,  as  Judge  Durfee 
observes,  not  only  "  shows  how  utterly  powerless  the  judiciary  was  under 
the  charter  in  any  conflict  with  the  legislature,"  but  also  "illustrates  the 
danger  attending  the  exercise  of  judicial  power  by  the  legislative  branch 
of  the  government."  (^Gleanings,  etc.,  42).  In  the  celebrated  case  of 
Trevett  vs.  Weeden,  in  1786,  the  Assembly  compelled  the  judges  of  the 
Superior  Court  to  answer  for  having  declared  one  of  its  legislative  acts  un- 
constitutional.    {R.  I.  Col.  Rec.,  X,  219-20;  Gleanings,  etc.,  52,  et  seq). 

The  decision  of  Chief  Justice  Ames  in  the  case  of  Taylor  vs.  Place  ren- 
dered in  1856  put  an  end  to  the  exercise  of  judicial  power  by  the  Assembly. 
That  body  delayed  action  in  the  case  of  Ives  vs.  Hazard  which  came  up 
shortly  after  the  above  decision  was  rendered,  and  was  constantly  before  it 
until  February,  1860,  when  it  was  finally  withdrawn.  Judge  Durfee  says 
that  "since  then  the  Assembly  has  never,  intentionally  at  least,  encroached 
upon  the  proper  province  of  the  judiciary."     {Ibid.,  65.) 


64  Colonial  Origins  of  New  England  Senates.         [156 

Section  IV. — The  Legislative  Function. 

As  has  been  noted,  the  Assistants  were  given  legislative 
power  by  the  second  charter  for  the  first  time  in  Rhode  Island 
history.^  This  charter  declared  the  Governor  or  Deputy  Gov- 
ernor and  at  least  six  Assistants  necessary  to  constitute  a 
quorum  of  the  Assembly, — no  reference  being  made  to  the 
Deputies  as  an  essential  part  of  that  body. 

Being  thus  constituted,  the  Assembly  was  given  power  to 
admit  freemen,^  to  establish  courts  and  other  necessary  offices, 
to  elect  and  commission  officers,  to  make  and  repeal  laws  and 
ordinances,  to  regulate  elections,  and  to  alter  or  annul  sen- 
tences of  the  various  courts  of  the  colony.^  The  only  restric- 
tion upon  the  exercise  of  this  authority  was  imposed  by  an 
ingeniously  worded  clause  of  the  charter  which  virtually 
annulled  itself.*  Not  only  was  the  legislature  of  the  colony 
thus  freed  from  royal  interference,  but  it  was  also  independent 
of  the  Governor,  since  he  was  not  given  the  veto  power."  The 
people  of  Rhode  Island  were  therefore  able  to  conduct  their 
government  in  the  same  spirit  of  independence  that  had  pre- 
viously characterized  the  towns. 

To  be  sure  the  failure  of  the  charter  to  recognize  the  pres- 
ence of  a  majority  of  the  Deputies  as  necessary  to  constitute  a 
quorum,  was  soon  noted  by  the  people,  and  in  November,  1672, 


'  See  supra,  p.  58. 

*  This  provision  led  to  the  final  displacement  of  the  charter  in  1842. 

'R.  I.  Col.  Rec,  II,  9-10;  Douglass'  Summary,  II,  81-2;  Chalmers' 
Annals,  275. 

*  It  required  that  the  "  laws,  ordinances  and  constitutions  soe  made,  bee 
not  contrary  and  repugnant  unto,  butt,  as  neare  as  may  bee,  agreeable  to 
the  lawes  of  England,  considering  the  nature  and  constitution  of  the  place 
and  people." 

*In  1732  the  law  officers  of  the  Crown  decided  that  "by  the  charter  of 
Rhode  Island  the  governor  had  not  veto  power,"  and  "  more  than  all  the 
King  himself  had  no  power  reserved  in  the  charter  either  to  sanction  or  to 
veto  any  act  of  the  Assembly  that  was  not  inconsistent  with  the  laws  of 
England."     (Arnold,  II,  108;  Palfrey,  IV,  130-1.) 


157]  Rhode  Island.  66 

the  Deputies  made  a  formal  demand  for  greater  recognition. 
After  citing  the  privileges  accorded  all  English  citizens  by 
the  Petition  of  Rights,  they  claimed,  as  "representatives  of 
the  freemen"  of  the  colony,  the  prerogatives  accorded  the 
House  of  Commons  in  England.  A  reform  bill  was  then 
passed  requiring:  (1)  That  "noe  tax  nor  rate  from  henceforth 
shall  be  made  layde  or  levied  on  the  inhabitants  of  this  Collony, 
without  the  consent  of  the  Deputys  present  pertaining  to  the 
whole  Collony ; "  ^  and  (2)  That  "  in  all  weighty  matters, 
wherein  the  King's  honor  is  most  concerned,  and  the  peoples 
antient  right  and  libertys  most  jeoparded  .  .  .  the  Assembly 
shall  be  the  major  part  of  the  Deputys  belonging  to  the  whole 
Collony,  as  there  must  be  the  major  part  of  the  Assistants  (by 
the  charter).  Butt  otherwise,  such  said  act  (if  made  without 
the  major  part  of  Deputys  present),  such  said  act  shall  be  voyd 
and  of  none  effect."  ^  Thus,  instead  of  equalizing  the  power 
of  these  bodies,  an  advantage  was  given  to  the  Deputies,  since 
they  outnumbered  the  Assistants,  and  all  acts  were  passed  by 
a  joint  vote.  This  inequality  was  not  offset  until  1696,^  when 
the  Assembly  was  divided  into  two  co-ordinate  branches,  each 
having  power  to  originate  any  bill  *  and  to  negative  the  legis- 


^  In  May,  1678,  another  restraint  upon  the  taxing  power  of  the  Assembly 
was  imposed  by  an  act  which  required  notice  of  all  levies  to  be  given  in 
advance  to  all  towns  of  the  colony.     (Arnold,  I,  441). 

*B.  I.  Col.  Bee,  II,  472-3;   Arnold,  I,  364-5. 

*  For  more  than  thirty  years  after  its  organization  the  Assembly  was  a 
unicameral  body.  This  was  not,  however,  in  harmony  with  the  ideas  of  the 
people,  since  the  colonial  records  (II,  63)  show  that  it  had  become  "a  long 
agitation"  as  early  as  the  second  meeting  of  the  Assembly  in  October,  1664. 
By  numerous  expedients  and  compromises  final  action  on  the  matter  was 
deferred  until  May,  1 696,  when  the  two  houses  separated,  and  the  Governor, 
Deputy  Governor  and  ten  Assistants  became  the  Upper  and  the  Deputies 
the  Lower  House  of  the  Assembly.  See  Prof.  T.  F.  Moran's  Rise  and  Devel- 
apment  of  the  Bicameral  System  in  America,  J.  H.  U.  Studies,  Thirteenth 
Series,  V,  22-6. 

*  In  Khode  Island  alone  of  all  the  New  England  colonies  the  Senate  had 
undisputed  power  to  originate  money  bills  as  late  as  the  Bevolution. 

6 


66  Colonial  Origins  of  New  England  Senates.         [158 

lative  acts  of  the  other.*  The  relations  between  the  two  bodies 
continued  unaltered  throughout  the  remainder  of  the  colonial 
period,  and  in  fact  down  to  the  present  time.^  When  the 
colony  became  independent  of  Great  Britain  the  charter  as  a 
constitution  of  civil  government  was  abrogated,  yet  the  form 
of  government  which  was  established  by  it  was  continued  by 
common  consent  without  any  essential  change,^  and  throughout 
the  constitution-making  period  which  followed  the  close  of 
the  struggle  with  England,  Rhode  Island,  like  Connecticut, 
retained  her  old  charter  as  a  state  constitution.  After  the 
close  of  the  Revolutionary  War,  the  Upper  House  of  the 
Assembly,  which  had  been  called  the  "  Council,"  was  dignified 
by  the  more  republican  and  euphonious  title  of  "  Senate." 


Section  V. — The  Constitution  of  1842. 

This  instrument  provided  that  the  government  of  the  state 
should  still  be  "  distributed  into  three  departments,  the  legis- 
lative, executive,  and  judicial."* 

The  chief  executive  power  was  vested  in  a  Governor  and  a 
Lieutenant  Governor,  both  of  whom  were  elected  annually.^ 

The  judicial  power  was  vested  in  a  Supreme  Court  and  in 
such  inferior  courts  as  the  General  Assembly  might  ordain 
and  establish.® 

The  legislative  function  was  vested  in  a  General  A&sembly 
which  continued  to  exercise  the  powers  it  had  "  hitherto  exer- 
cised, unless  prohibited  by  the  constitution."^     It  was  com- 


^ Rhode  Island  is  the  only  New  England  State  in  which  the  Governor 
and  Deputy  Governor  are  still  ex  officio  members  of  the  Senate  and  the 
Governor  is  denied  a  veto  power. 

*  See  infra. 

3  Pease  and  Niles'  Gazetteer  of  Conn,  and  R.  I.  (1819),  313.  '•Art.  III. 

*Art.  VII,  Sec.  1,  In  1854  the  pardoning  power  was  placed  in  the  hands 
of  the  Governor  "with  the  advice  and  consent  of  the  Senate."  (Amend- 
ments to  the  Ckjnstitution  of  1842,  Art.  II. ) 

•ArU  X,  Sec.  1.  ^Art.  IV,  Sec.  10. 


159]  Rhode  Island.  67 

posed  of  two  branches — a  House  of  Representatives  and  a 
Senate.^  The  former  was  based  upon  population,  each  town 
being  entitled  to  at  least  one  Representative  and  not  more  than 
one-sixth  of  the  whole  number.^  The  Upper  House  was  based 
upon  a  different  and  somewhat  arbitrary  principle, — only  one 
Senator  being  elected  annually  from  each  town  regardless  of 
population.^  As  in  colonial  times,  both  bodies  continued  to 
meet  together  in  "  Grand  Committee "  for  the  transaction  of 
matters  pertaining  to  elections.*  When  sitting  apart,  the 
powers  and  privileges  of  both  continued  to  be  co-equal  in 
every  respect.  The  now  effete  and  totally  illogical  principle 
of  limiting  the  prerogative  of  the  Senate  in  the  origination 
of  money-bills  was  still  ignored  as  it  had  always  been  in  Rhode 
Island.  Due  caution  was  shown  in  regard  to  public  finance 
by  the  incorporation  of  a  provision  that  a  two-thirds  vote  "  of 
the  members  elected  to  each  house,"  was  necessary  to  appro- 
priate "  public  money  or  public  property  for  local  or  private 
purposes."^  The  spirit  of  regard  for  the  primary  source  of 
authority  which  has  always  characterized  Rhode  Island  both 
as  a  colony  and  a  state  was  not  totally  ignored  in  this  constitu- 
tion. There  were  two  provisions  which  restricted  the  power  of 
the  General  Assembly :  (1)  It  was  not  allowed,  except  under 
certain  circumstances,  "  to  incur  State  debts  to  an  amount  ex- 


lArt.  IV,  Sec.  2.  «Art.  V,  Sec.  1. 

'Art.  VI,  Sec.  1.  This  protectioi^  of  the  rights  of  the  minority  is  one  of 
the  fundamental  principles  for  which  Rhode  Island  contended  upon  the 
formation  of  the  Federal  Constitution.  This  "  most  conservative  element 
in  their  whole  system  of  government"  was  incorporated  into  the  Constitu- 
tion of  1842  in  order  to  "  maintain  unimpaired  the  equal  rights  of  every 
section  of  the  State,"  and  to  "  prevent  any  one  interest  from  engrossing  a 
dangerous  portion  of  political  power"  (Mr.  Goddard's  Address  on  the  Oc- 
casion of  the  change  in  the  Oivil  Government  of  R.  L,  31),  since  such  a  city  as 
Providence,  which  at  that  time  had  25,000  inhabitants  and  therefore  wielded 
in  the  House  one-sixth  of  the  power,  was  entitled  to  exert  no  more  power 
in  the  Senate  than  the  town  of  Jamestown,  which  at  that  time  had  less  than 
400  inhabitants.     (Ibid.,  30.) 

*Art.  IV,  Sec.  18 ;  VIII,  Sees.  3,  7  ;  X,  Sees.  4,  5.  *Art.  IV,  Sec.  14. 


68  Colonial  Origins  of  New  England  Senaies.         [160 

ceeding  fifty  thousand  dollars,"  "  without  the  express  consent 
of  the  people ;  "  ^  and  (2)  all  bills  for  the  creation  of  corpora- 
tions, with  certain  stipulated  exceptions,  should  "  be  continued 
until  another  election  of  members  of  the  General  Assembly," 
and  "such  public  notice  of  the  pendency  thereof "  should  "be 
given  as  may  be  required  by  law."^ 

No  changes  were  made  in  the  personnel  of  the  Senate.  The 
Governor  still  held  his  position  as  ex  offixiio  President  of  that 
body,  and  as  such,  had  a  casting  vote  "  in  case  of  equal  divis- 
ion," but  no  veto  power.^  The  Lieutenant  Governor  also 
retained  his  position  as  an  ea?  offi,Gio  member,  having  equal 
privileges  with  the  rest  of  the  Senators.* 

As  in  other  states,  the  Senate  retained  a  fragment  of  judicial 
authority  in  its  power  to  try  impeachments.*  A  person  con- 
victed in  such  a  trial  was  also  liable  to  criminal  "  indictment, 
trial,  and  punishment  according  to  law."  ^ 


» Art.  IV,  Sec.  13.  *  Art.  IV,  Sec.  17.  »  Art.  VI,  Sec.  2, 

*  Art  VI,  Sec.  1 .  »  Art.  XI,  Sec.  2.  «  Art.  XI,  Sec.  3. 


CHAPTER  V. 

Conclusions. 

Section  I. — Origin  of  the  New  England  Senates. 

If  the  facts  here  set  forth  have  been  correctly  apprehended, 
the  State  Senates  of  New  England  did  not  originate  in  a  desire 
to  transplant  to  American  soil  the  English  House  of  Lords ; 
but  on  the  contrary,  they  are  in  their  most  important  and 
essential  features,  the  results  of  a  natural  course  of  develop- 
ment under  circumstances  and  conditions  peculiar  to  the  colo- 
nies themselves.^  To  be  sure  they  bear  some  crude  analogies 
to  the  House  of  Lords,  but  analogies  alone  are  dangerous 
premises  from  which  to  deduce  conclusions  as  to  the  origin 
of  institutions,  since  they  may  be  due  not  to  imitation  but 
to  common  race  instincts  or  to  similarity  of  circumstances.^ 


^  This  phase  of  the  subject  has  been  presented  by  Janaes  Harvey  Robinson 
in  the  AnTiak  of  Amer.  Acad.,  I,  203-243,  and  by  William  C.  Morey  in  ibid., 
529-557,  also  in  ibid.,  IV,  pt.  1,  201-232. 

* "  A  strong  current  of  similar  events  will  produce  coincidences  in  the 
history  of  nations  whose  whole  institutions  are  distinct ;  much  more  will 
like  circumstances  force  similarly  constituted  nations  into  like  expedients ; 
nay,  great  legislators  will  think  together  even  if  the  events  that  suggest  the 
thought  be  of  the  most  dissimilar  character.  No  amount  of  analogy  between 
two  systems  can  by  itself  prove  the  actual  derivation  of  the  one  from  the 
other."     (Stubbs'  Conslilutional  Hist,  of  Eng.,  second  edition,  I,  207). 

"  We  see  the  same  political  phsenomena  repeating  themselves  over  and 
over  again  in  various  times  and  places,  not  because  of  any  borrowing  or 
imitation,  conscious  or  unconscious,  but  because  the  like  circumstances  have 
led  to  the  like  results."     (Freeman's  Comparative  Polities,  32). 

69 


70  Colonial  Origins  of  New  England  Senates.         [162 

These  analogies  between  the  S^ate  and  the  House  of  Lords 
lose  their  force  as  arguments  when  we  consider  the  facts  that : 

1.  The  Councils  from  which  the  Senates  developed,  origi- 
nated in  ideas  foreign  to  the  English  political  system.  The 
charters  upon  which  the  government  of  the  colonies  were 
based,  owe  their  origin  not  to  the  political  but  the  commercial 
policy  of  the  mother  country/  Hence  the  Council  of  Massa- 
chusetts was  evolved  from  the  Board  of  Directors  of  a  trading 
company^  and  furnished  in  turn,  the  model  for  those  of 
Connecticut ^  and  New  Hampshire;^  while  in  Rhode  Island 
it  was  merely  a  revival  of  the  Hebrew  Court  of  Elders,®  and 
previous  to  the  granting  of  the  charter  of  1663  by  which  its 
government  was  assimilated  to  the  common  model,  this  body 
had  no  legislative  power  whatever. 

2.  The  transition  from  Council  to  Senate  was  not  made 
through  any  conscious  efforts  to  conform  to  British  models. 
The  preceding  pages  of  this  study  have  shown  that  the  suc- 
cessive stages  of  this  development, — the  introduction  of  the 
representative  system,^  the  granting  of  a  negative  power,'^  the 
introduction  of  the  bicameral  system,*  the  loss  of  ex  officio 
membership  in  the  Councils,^  the  gradual  diminution  and 
final  disappearance  of  their  executive  and  judicial  authority, 
and  the  differentiation  of  the  powers  and  privileges  of  the  two 
branches  of  the  legislatures^" — either  followed  from  inter- 
colonial influences  or  from  efforts  on  the  part  of  the  colonists 
to  remove  the  points  of  friction  in  their  crudely  organized 
governments,  and  thus  to  adapt  their  primitive  institutions  to 
American  conditions.  If,  again,  the  colonists  had  imitated  a 
common  model  in  the  development  of  this  institution  their 


^  For  an  able  presentation  of  this  subject  see  Prof.  Morey's  Oenesis  of  a 
Writlen  Constitution,  Annals  of  the  Amer.  Acad.,  Vol.  I,  p.  529  et  seq.,  April, 
1891. 

^  Supra,  p.  10.  ^ Supra,  pp.  28,  30,  note  2, 

*  Supra,  p.  46.  ^  Supra,  p.  56.  ^  Supra,  pp.  18,  56,  note  1. 

•» Supra,  pp.  20,  36-7,  46,  65.  'Supra,  pp.  20-1,  37,  46,  65. 

»  Supra,  pp.  21-2.  ^^  Supra,  pp.  16,  note  1,  22-3,  37. 


163]  Conelusions.  71 

results  would  have  exhibited  more  features  in  common.  On 
the  contrary,  however,  at  the  formation  of  the  Federal  Con- 
stitution they  differed  in  almost  every  characteristic  feature, — 
in  size,^  composition,^  qualification,^  basis  of  election,*  powers 
and  privileges.^  In  fact,  as  Prof.  Morey  forcibly  observes, 
"  it  might  well  be  said  that  they  were  common  only  in  that 
feature,  in  which  they  differed  from  the  English  House  of 
Lords,  namely,  the  fact  that  they  were  all  based  upon  popular 
election."  ^ 


^  The  size  of  the  early  state  Senates  in  New  England  were  as  follows : 
Massachusetts,  thirty -one  {supra,  p.  27,  note  2) ;  Connecticut,  twelve  {supra, 
pp,  30,  note  4,  38)  ;  New  Hampshire,  twelve  {supra,  p.  52),  and  Ehode 
Island,  ten  {supra,  p,  58). 

*  In  Massachusetts  the  Governor  and  Lieutenant-Governor  ceased  to  be 
ex  officio  members  of  the  Senate  in  the  colonial  era  {supra,  pp.  21-2).  In  Con- 
necticut both  retained  their  seats  in  this  body  until  1818  {supra,  pp.  38-9). 
In  New  Hampshire  the  Senate  was  composed  of  twelve  Senators,  presided 
over  by  the  Presidentof  the  state  who  had  a  vote  equal  with  the  others  {supra, 
p.  62).  In  Rhode  Island  the  Governor  and  the  Lieutenant-Governor  still 
have  a  seat  in  the  Senate  the  former  being  ex  officio  President  {supra,  pp.  66, 
note  1,  68). 

'The  qualifications  for  Senator  after  the  Revolution  were  as  follows: 
Massachusetts — must  be  an  inhabitant  of  the  state  five  years  and  of  the 
district  at  the  time  of  election,  have  a  freehold  estate  of  £300  or  a  personal 
estate  of  £600  {supra,  p.  26,  note  1 ) ;  Connecticut — must  be  a  citizen  of  the 
state  {supra,  p.  39,  note  2) ;  New  Hampshire — must  be  a  protestant,  pos- 
sessed of  a  freehold  estate  of  £200  within  the  state,  an  inhabitant  of  the  state 
for  seven  years  preceding  election  and  of  the  district  from  which  chosen  at 
the  time  of  election  {supra,  p.  23) ;  Rhode  Island — citizenship  in  one  of 
the  four  principal  towns  of  the  colony  {supra,  p.  67). 

*  In  Massachusetts  the  Senators  were  chosen  from  electoral  districts  {supra, 
p.  27,  note  2) ;  in  Connecticut  from  the  state  at  large  {supra,  p.  38) ;  in  New 
Hampshire  from  electoral  districts  {supra,  p.  52)  ;  and  in  Rhode  Island  from 
the  different  towns  of  the  state  {supra,  p.  67). 

*In  Massachusetts  {supra,  p.  27),  and  New  Hampshire  {supra,  p.  53)  the 
Lower  House  alone  could  originate  money  bills,  while  in  Rhode  Island  it 
could  be  done  by  either  branch  {supra,  p.  65,  note  4).  In  Massachusetts 
and  New  Hampshire  the  Upper  House  alone  had  power  to  try  impeach- 
ments. 

6  Annals  Amer.  Acad.,  IV,  pt.  I,  p.  22,  September,  1893. 


72  Colonial  Origins  of  New  England  Senates.         [164 

Section  II. — Forces  which  gave  Direction  to  the  Development.^ 

It  is  difficult  to  account  in  a  satisfactory  way  for  all  the 
phenomena  which  appear  in  the  history  of  this  evoltition  from 
Council  to  Senate.  Of  the  many  complicated  causes  which 
determined  the  course  of  this  development,  from  time  to  time, 
the  following  appear  to  the  writer  as  worthy  of  mention  : 

1.  lAmitation  of  the  Number  of  Counsellors. — In  all  these 
colonies  the  number  of  Counsellors  was  fixed  by  charter  and 
could  not  therefore  increase  with  the  growth  of  population^  as 
could  the  Deputies  or  Representatives  chosen  by  the  towns. 
Since  the  General  Courts  were  at  first  unicameral  bodies,  this 
limitation  threatened  to  destroy  the  power  of  the  Councils 
which  formed  a  hopelessly  small  and  constantly  diminishing 
proportion  in  the  membership  of  these  bodies.  This  cause, 
enforced  by  the  constant  clashing  of  authority,  led  to  two  im- 
portant results  in  the  evolution  of  the  Councils :  (1)  The 
granting  of  a  negative  vote  to  each  of  the  constituent  parts  of 
the  General  Courts  over  the  acts  of  the  other,^  and  (2)  The 
introduction  of  the  bicameral  system.* 

2.  Extent  of  Authority,  and  Gi'owth  of  the  Colonies. — The 
Councils  not  only  enjoyed  a  legislative  power  which  was  co- 
ordinate with  that  of  the  popular  branches,  but  their  authority 
also  extended  originally  over  the  executive  and  judicial  do- 
mains. Thus  the  body  which  was  incapable  of  increase  was 
granted  powers  which  extended  into  every  department  of  gov- 
ernment, while  the  larger  and  more  elastic  body,  numerically 
speaking,  was  preeminently  a  legislative  body.     Upon  the 


*  No  author,  within  the  knowledge  of  the  writer,  has  hitherto  attempted 
to  go  into  the  details  of  this  discussion. 

*  It  is  not  probable  that  the  colonists,  who  were  jealous  of  the  aristocratic 
tendencies  of  these  bodies,  desired  to  increase  their  number.     See  8upra. 

^  Supra,  pp.  20,  36-7.  New  Hampshire  was  an  exception.  Having  had 
the  benefit  of  the  experiences  of  Massachusetts  she  settled  this  question 
without  a  struggle  {supra,  p.  46). 

*  Supra,  pp.  20-1,  37,  65. 


166]  Conclusions.  73 

growth  ©f  the  colonies  and  the  consequent  increase  of  public 
business,  it  became  impossible  for  the  Counsellors  to  attend  to 
their  numerous  and  constantly  accumulating  duties.  Since 
their  number  was  not  permitted  to  increase  to  a  degree  com- 
mensurate with  the  burdens  of  their  office,  the  problem  could 
only  be  solved  by  restricting  the  scope  of  their  authority. 
This  resulted  in  a  diminution  of  their  executive  and  judicial 
duties  in  the  following  ways :  (1)  By  the  delegation  of  their 
powers,  especially  those  of  a  judicial  nature;^  (2)  By  the  cre- 
ation of  judges  outside  their  ranks  ;^  and  (3)  By  a  reduction 
of  the  number  of  Counsellors  necessary  to  constitute  a  quorum.' 
3.  Illogical  Principle  upon  which  Power  was  Distiibuted. — 
Instead  of  having  a  wholesome  system  of  checks  and  balances, 
the  colonial  governments  present  a  union  of  the  most  incom- 
patible principles  of  authority.  The  Counsellors  were  at  the 
same  time  intrusted  with  the  making,  the  interpreting,  and 
the  executing  of  laws.  As  members  of  the  General  Courts, 
which  constituted  the  supreme  judicial  tribunal  of  the  colonies, 
they  heard  and  were  allowed  either  to  help  determine  or  at 
least  to  express  opinions  on  cases  of  appeal  from  their  verdicts 
as  courts  of  the  first  instance.  They  were  also  required  to 
act  upon  bills  for  the  regulation  of  the  judicial  system — in 
which  they  were  of  course  personally  concerned — before  such 
bills  could  have  the  force  of  law.  The  most  serious  defect  of 
such  a  distribution  of  power  was  perhaps  its  effect  upon  the 
offices  of  relatively  small  importance.  Since  the  Counsellors 
acted  in  several  capacities,  they  were  usually  chosen  with  re- 
gard to  their  most  important  function.  This  principle  of 
choice  might  lead  to  the  selection  of  an  efficient  legislative 
body,  but  since  those  most  efficient  in  legislation  are  not 
always  the  most  capable  in  administration  and  adjudication, 
one  or  both  of  these  functions  must  suffer  by  such  a  union. 
The  colonists  saw  and  opposed  some  of  these  incongruities 


^Svkpra,  pp.  17,  33-6,  45,  62.  'Ibid.  'Supra,  p.  10,  note  2. 

6 


74  Colonial  Origins  of  New  England  Senates.         [166 

from  time  to  time,  but  were  unable  to  effect  the  necessary 
changes  before  the  formation  of  their  State  Constitutions. 

4.  Introduction  of  the  Idea  of  a  Complete  Separation  of  the 
Functions  of  Government. — Although  the  growth  of  the  colo- 
nies and  the  illogical  distribution  of  power  tended  to  a  differ- 
entiation of  governmental  functions,  it  is  not  probable  that 
this  principle  would  have  been  so  clearly  and  uniformly 
applied  as  it  is  at  present,  if  the  Montesquieu^  doctrine  of  a 
complete  separation  of  the  functions  of  government  had  not 
gained  an  ascendency  in  the  colonies  just  as  they  were  entering 
the  great  constitution-making  epoch  in  their  history.  Hence 
the  introduction  of  this  idea  must  have  hastened,  at  least,  the 
final  step  in  the  evolution  of  the  Senate. 

5.  Inter-Goloniallnflaences. — This  force  is  particularly  notice- 
able in  the  New  England  colonies,  since  their  laws  and  insti- 
tutions are  alike  in  many  respects,  and  come  for  the  most  part 
from  the  same  mother  colony.  This  natural  predilection  was 
further  increased  by  their  close  proximity  to  each  other  and 
their  isolation  from  the  mother  country,  their  homogeneity  in 
race  and  language,  and  their  common  dangers  and  ambitions. 
These  things  produced  an  intercourse  among  them,  which 
resulted  in  the  general  dissemination  of  American  principles. 

6.  English  Charter's  and  Precedents. — The  various  charters 
of  the  New  England  colonies  have  a  common  origin  and  there- 
fore resemble  in  many  respects.     They  furnished  the  broad 


'"Zneret  hat  Montesquieu  das  moderne  Princip  rait  Naclidruck  und  mit 
Erfolg  verkiindet."     (Bluntschli's  Slalslehre,  588.) 

"  Lorsque,  dans,  la  raSine  personne  ou  dans  le  m£me  corps  de  magistra- 
ture,  la  puissance  legislative  est  r^unie  i  la  puissance  ex^cutrice,  il  n'y  a  point 
de  liberl^  parce  qu'on  peut  craindre  que  le  mSrne  monarque  ou  le  m6me 
s^nat  ne  fasse  des  lois  tyranniques  pour  les  ex^cuter  tvranniquement. 

"  II  n'y  a  point  encore  de  liberie  si  la  puissance  de  juger  n'est  pas  s^par^e 
de  la  puissance  legislative  et  de  rex^cutrice.  Si  elle  etait  jointe  &  la  puis- 
sance legislative,  le  pouvoir  sur  la  vie  et  la  liberty  des  citoyens  serait  arbi- 
traire;  car  le  juge  serait  legislateur.  Si  elle  etait  jointe  &  la  puissance 
executricc,  le  juge  pourralt  avoir  la  force  d'un  oppresseur."  (Montesquieu's 
De  UEaprU  de  Lois,  Book  XI,  Ch.  VI.) 


167]  (hndusions.  76 

outlines  of  government  and  thus  gave  general  direction  to  the 
development  of  institutions  which  are  distinctly  American. 
The  colonists  were  also  conversant  with  the  English  Consti- 
tution  and  began  at  an  early  day  to  cite  such  English  precedents 
as  might  be  in  their  favor.  The  extent  of  both  these  influ- 
ences may,  however,  be  easily  exaggerated,  since  the  most 
beneficent  features  of  colonial  government, — the  representative 
system  for  example* — were  not  established  by  any  charters 
until  they  had  become  established  in  the  colonies ;  and  again, 
the  assertion  of  a  claim  to  the  benefits  bestowed  by  any 
particular  English  precedent  was  by  no  means  tantamount  to 
a  concession  on  the  part  of  those  with  whose  ideas  or  interests 
it  came  in  conflict.  For  instance,  the  right  of  the  popular 
branch  to  originate  money  bills  was  asserted  in  Massachusetts 
at  a  comj)aratively  early  date.  This  demand  was  doubtless 
based  upon  English  precedent,  but  since  the  charter  contained 
no  such  provision,  the  point  at  issue  was  not  finally  conceded 
without  a  scries  of  conflicts  extending  over  a  long  jxiriod  of 
time.  In  fact,  English  precedents  had  to  fight  their  battles 
anew  on  American  soil,  and  were  seldom  incorporated  into  the 
government  of  the  colonies  before  they  had  shown  themselves 
worthy  of  a  place  in  our  political  system.  Hence  those 
features  which  were  usually  claimed  as  an  inheritance  and 
consciously  adopted,  were  "  not  so  much  the  customary  forms 
which  entered  into  the  structure  of  the  British  government  as 
those  chartered  privileges  which  might  serve  to  protect  them 
from  the  supervision  and  interference  of  autocratic  power.'" 

Section  III. — Inherited  Characteristics  of  tlie  Senates. 

Although,  as  has  been  noted,  the  Councils  in  the  New 
England  colonics  presented  many  essential  points  of  contrast 
to  each  other,  there  is,  nevertheless,  a  certain  degree  of  unity 

^Supra,  p.  18. 

•Morey's  First  Stale  CkmsiiltUions,  Annals  Amer.  Acad.,  Vol.  IV,  pt.  1,  32, 
September,  1893. 


76  Colonial  Origins  of  New  England  Senates.         [168 

in  this  diversity.  They  exhibited  certain  features  in  common 
which  have  been  transmitted,  to  their  successors.  The  most 
striking  of  these  are  the  contrasts  between  the  Councils  and 
the  Lower  Houses  of  the  Assemblies  on  the  following  points : 

1.  Size. — The  Councils  were  always  the  smaller  of  the  two 
branches  of  the  Legislature.  Their  number  was  usually  fixed 
by  charter  and  was  not,  therefore,  subject  to  the  degree  of 
variation  that  is  noticeable  in  the  Lower  Houses. 

2.  Personnel. — The  Councils  were  composed  of  the  more 
dignified  and  conservative  portions  of  the  population.  The 
Representatives  were  chosen  from  among  the  people  and  were 
therefore  more  closely  in  touch  with  them,  and  hence  more 
radical  in  principle. 

3.  Basis  of  Selection} — The  Counsellors  represented  a  lar- 
ger constituency  than  the  Representatives,  who  were  always 
chosen  by  towns  or  hundreds. 

4.  Term  of  Office. — The  Counsellors  were  chosen  for  a  long 
term,*  while  the  Representatives  were  always  chosen  for  a  brief 
period. 


^  The  method  by  which  the  Couosellors  were  chosen  varied  from  time  to 
time.     See  supra. 

'  In  Massachusetts  and  Connecticut  the  Counsellors  had  at  first  practi- 
cally a  life-tenure.    See  supra. 


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PuWlcations  of  tk  American  Jewish  Historical  Society. 

No.  I,   1893. 

Contains  the  following  papers:  Address  of  the  President,  Hon.  Oscar  S. 
Straus. — The  Settlement  of  the  Jews  in  Georgia,  Chas.  C.  Jones,  Jr.,  LL.D. — 
Mickoe  Israel  Congregation  of  Philadelphia,  Kev.  Sabato  Moraio,  LL.  D. — 
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H.  Hollander. — Beginnings  of  New  York  Jewish  History,  Max  J.  Kohler. — 
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Jews  mentioned  in  the  Journals  of  the  Continental  Congress,  Dr.  Herbert 
Friedenwald. — A  Landmark,  N.  Taylor  Phillips. — An  Act  allowing  natu- 
ralization of  Jews  in  the  Colonies ;  A  Document  concerning  the  Franks  family, 
Hon.  Simon  \V.  Eosendale. — Jewish  beginnings  in  Kentucky,  Lewis  N. 
Dembitz. — Jews  in  the  American  Plantations  between  1600-1700;  Americana 
at  the  Anglo-Jewish  exhibition;  A  Political  Document  of  the  year  1800,  Dr. 
Cyrus  Adler. — The  Settlement  of  the  Jews  in  Canada,  Andrew  C.  Joseph. 

8o.    143  pp.    $1.50. 
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Contains  the  following  papers:  Address  of  the  President,  Hon.  Oscar  S. 
Straus. — A  sketch  of  Haym  Salomon,  Prof.  H.  B.  Adams. — History  of  the 
Jews  of  Chicago ;  The  Jewish  Congregation  in  Surinam ;  A  Sermon  by  Moses 
Mendelssohn  printed  in  Philadelphia  130  years  ago.  Dr.  B.  Felsenthal. — The 
Civil  Status  of  the  Jews  in  Maryland,  1634-1776,  Dr.  J.  H.  Hollander. — Rev. 
David  Mendez  Machado,  N.  Taylor  Phillips. — Note  concerning  David  Hays, 
Solomon  Solis-Cohen. — The  Colonization  of  America  by  the  Jews,  Dr.  M. 
Kayserling. — Phases  of  Jewish  Life  in  New  York  before  1800;  The  Djpez  and 
Bivera  families  of  Newport,  Max  J.  Kohler. — Letter  of  Jonas  Phillips  to  the 
Federal  Convention ;  Jacob  Isaacs  and  his  method  of  converting  salt  water  into 
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Friedenwald. — Columbus  in  Jewish  Literature,  Prof.  Eichajid  Gottheil. — 
Settlement  of  the  Jews  in  Texas,  Rev.  Henry  Cohen. — Aaron  Levy,  Mrs.  J.  H. 
RosENBACH  and  A.  S.  W.  Rosenbach. — Documents  for  the  Public  Record  Office 
(London),    Dr.    Charles   Gross. — Memoir   of  John    Moss,    Lucien    Moss. 

8o.    207  pp.     $1.50. 
No.  3,  1895. 

Contains  the  following  papers:  Address  of  the  President,  Hon.  OscAB  S. 
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Hollander. — The  earliest  Rabbis  and  Jewish  writers  of  America,  Dr.  M. 
Kayserling. — The  American  Jew  as  Soldier  and  Patriot,  Hon.  Simon  Wolf. — 
Points  in  the  first  chapter  of  New  York  Jewish  History,  A.  M.  Dyer. — An 
early  ownership  of  Real  Estate  in  Albany,  N.  Y.,  by  a  Jewish  trader,  Hon.  Simon 
RoSENDALE. — Phases  of  Jewish  Life  in  New  York  before  1800,  II,  Max  J, 
Kohler. — Correspondence  between  Washington  and  Jewish  citizens ;  The  relation 
of  Jews  to  our  National  monuments,  Lewis  Abraham. — Early  Jewish  literature 
in  America,  G.  A.  KoHUT.  8o.     173  pp.    $1.50. 

No.  4,  1896. 

Contains  the  following  papers :  Chronological  sketch  of  the  history  of  the  Jews 
in  Surinam,  Dr.  B.  Felsenthal  and  Prof.  Richard  Gottheil. — The  Jews  in 
Texas,  Rev.  Henry  Cohen. — The  Jews  of  Richmond,  Jacob  Ezekiel. — The 
trial  of  Jorge  de  Almeoda  by  the  Inquisition  in  Mexico  (with  an  illustration), 
Dr.  Cyrus  Adler. — Incidents  illustrative  of  American  Jewish  Patriotism,  Max 
J.  Kohler. — Jewish  Martyrs  of  the  Inquisition  in  South  America,  G.  A.  Kohut. — 
The  Levy  and  Leixas  families  of  Newport  and  New  York,  N.  T.  Phillips. — ^A 
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